Public Bill Committee

[Derek Conway in the Chair]

Clause 104

Standard of proof in fitness to practise proceedings

Amendment moved[this day]: No. 50, in clause 104, page 51, line 11, after first ‘to’, insert ‘the finding of facts in’.—[Mr. Stephen O’Brien.]

Derek Conway: I remind the Committee that with this we are taking the following amendments: No. 51, in clause 104, page 51, line 12, at end insert—
‘(1A) Notwithstanding subsection (1) the rules of procedure in any proceeding to which subsection (1) applies shall be those which apply to criminal proceedings.’.
No. 57, in clause 115, page 62, line 30, at end insert—
‘(1A) Notwithstanding subsection (1) the rules of procedure in any proceeding to which subsection (1) applies shall be those which apply to criminal proceedings.’.

Stephen O'Brien: I am very flattered that what I was saying this morning was obviously of such intense interest and attraction that all the Labour members of the Committee have bothered to turn up again to hear what I say. I am most grateful to them for coming.
This morning we were going through our amendments to clause 104 on standards of proof, and I had just reached my final point, which dealt with some of the oral evidence from Dr. Laurence Buckman and the British Medical Association about defensive medicine. I explained that he had not made the case as effectively as some of us thought he might have done, given his justified concern that doctors would no longer be practising the best health care for their patients, but rather the best health care balanced with the best methods for avoiding any accusations that might end up in a fitness to practise hearing.
When I say “justified concern,” I mean a concern that we all have to take seriously, because anything said by the body representing doctors about the way they may practise is something we need to note with care. This is not a matter of contention in terms of the principle of moving the standard of proof; it has not turned into something on which the Committee is seeking to divide, but we owe it to the evidence we were presented with to look at it with some care.

Anne Milton: Although I recognise that the BMA did not represent themselves terribly well during the evidence hearings, the point about defensive medicine is important and it is a concern. The Royal College of Obstetricians and Gynaecologists has said that the number of junior doctors wanting to go into obstetrics has dropped to an all-time low because of fears of litigation; in fact, one of the reasons cited for the increase in Caesarean sections is that doctors are very nervous about litigation.

Stephen O'Brien: I am grateful to my hon. Friend, who is right to raise that point. It highlights the difficulty for all of us—particularly when dealing with new legislation—in understanding how much it arises because of specific items such as the one we are considering and how much because there has been a general move toward what is most easily defined as a compensation culture, where some may be driven by contingency legal fees or the purposes of the settlement value or whatever it may be. I have some grave difficulties with that and regret that we have moved to such a state of affairs, but there we are: the general and the specific are often very difficult to disaggregate. We all need to be concerned if there is a trend towards more litigation and it is having an effect on professional practice.
The concern can range from lowering the level of risk when clinical decisions are made to doctors prescribing otiose procedures to hedge themselves effectively, with the NHS footing the bill all the while. Chapter 4 of the “Trust, Assurance and Safety” White Paper touched on the issue, stating:
“This argument rests on the misapprehension that, under the criminal standard, professionals might choose more risky, but potentially more effective, clinical interventions.”
The counter-argument is that health professionals, with high professional standards of commitment to their patients, would guard against that risk. Where there is doubt,
“health professionals, usually working within a team of other professionals, would generally make such decisions in consultation with their colleagues to ensure a consensus of expert opinion and agreement. In addition, where significant doubt or concerns remain about a procedure, intervention or prescription, clinicians are professionally obliged to obtain informed consent from their patients...In emergencies, such an approach may not be possible and the judgement of the individual clinician in such a situation will be paramount.”
Regulators and panels would take that into account. It would be very helpful if the Minister could give the Committee any further insight on the issue. I recall the intervention of my hon. Friend the Member for Tiverton and Honiton this morning, so the Minister’s comments may be helpful to ensure that we do not regard the issue merely as an irritant in our considerations, but to try and bring things to the level of reality. I do not want to disclose the name of the doctor who wrote to me about the defensive medicine issue, but he said:
“To illustrate this, today I saw 30 patients in surgeries and I have made 3 referrals from this day's work (which is about average for me). That is a referral rate of 10%. Let's say I get nervous (which I will) and, as a conservative estimate, I start on a day like this to refer 4 patients. That is an increase to a referral rate of roughly 13%. As an increase in my workload it is negligible. However, the hospital sector now has 4 instead of 3 referrals, an increase of 30%. Imagine a 30% rise in outpatient work, X-rays, scans, and blood tests across the board, because GPs need to manage the risk that a political appointee will find them ‘probably’ incompetent.
There may be other hidden costs. We may prescribe more. Many GPs nearing retirement age will bail out now, rather than face such a hostile future.”
That may be the type of sentiment that the BMA was trying to reflect in evidence to us. To be honest, I am not persuaded that view will drive the way the system will work, but as legislators we have to take what the BMA has presented to us seriously. We need to hear from the Minister that he and the Government have carefully thought the matter through and how they will make sure that moving the standard of proof does not lead to unintended consequences—although, because we are debating them, the consequences could not possibly be said to be unintended. The consequences would be intended because, having considered the clause, we shall definitely want to pass it—so we want to make sure that no intended consequences lead to unfortunate outcomes.
With that series of arguments, I propose the amendments in the group. I look forward to what the Minister has to say, in what is after all a broadly consensual area. However, the Committee needs to have on record a lot more detail of what lies behind the proposals.

Sandra Gidley: Most of the debate is a stand part debate as well, so my comments are generally on the whole principle of the change to the standard of proof from criminal to civil, rather than specifically on the detail of the amendment. I fully understand the concern of the doctors. However, many professional regulators already operate to a civil standard—my own profession, for example, but many others as well.
I am not particularly aware of cries of injustice over the outcomes of determinations of fitness to practise. That is only my understanding, but I have been told that the panels need a great degree of certainty before coming to the decision to apply the ultimate sanction. However, there are slight problems with some of the associated changes in the Bill, which removed the finding of facts, separating them from the decision as to which sanction should be applied. I want to talk about that a little more later on.
There appears to be lack of certainty about whether some sliding scale of proof applies. Assurances from the Minister before the Bill were that the rules would be applied flexibly, but that does not, sadly, inspire confidence—it is not lack of confidence in the Minister, but in the consistency of the whole process. In addition, it has to be noted that the profession appears to be divided. The General Medical Council will be introducing the changes anyway, whatever we decide in the Bill, but the BMA is opposed to them. I suspect that I am not alone among members of the Committee in receiving numerous individual representations from doctors who feel aggrieved. To say that they feel “got at” is a bit dramatic, but they think that they do a good job and that somehow there is a small risk that, just by doing their job, they may get something wrong one day and lose their livelihood. I am not sure that will happen in practice but I can understand the concern.
In oral evidence the BMA said that it was up to the Government to provide an evidence base as to why the changes should be made. I asked the BMA for evidence to support its claim that various things would go wrong and that there would be all sorts of consequences. I have yet to receive any evidence that is concrete proof that the change will lead to the fears expressed by the BMA becoming a reality.
What causes me slight concern is that clause 104 (4) says that the decision—if the clause is voted on and goes ahead—can be amended only by primary legislation. If it was fairly obvious that we had got it wrong, although I do not think that will be the case, it would be helpful if there were powers to enable us to make a quicker reversal by use of secondary legislation.
There are also concerns that, because of the lack of transparency over consistency, decisions could be made that would not inspire confidence in the procedure. The proposal for a legally qualified chair in some of the more difficult cases will probably help to supply some of that consistency. In the light of our debate this morning it would be helpful if the Minister could reflect on that point.
Concerns have been raised that there is likely to be considerable additional delay and expense. There are also concerns that there may be more legal challenges to protect doctors’ interests. If that were a fair assessment of the situation I do not think it is something to which we would happily say yes.
The Medical Defence Union provided some interesting food for thought. It claims:
“The argument that the public interest justifies a switch to a lower standard of proof because public safety would be better safeguarded is flawed...It cannot be in the public’s, patients’ or profession’s interest for good doctors to be found impaired when they are not. A lowering of the threshold of proof risks such unfairness and will undermine confidence in the regulatory process.”

Jeremy Wright: Does the hon. Lady agree that the other reason why the point she is making is valid is that in essence the system will mean that the more serious the breach by the doctor the higher the standard of proof will be? When the patient is most at risk, the standard of proof is likely to be closest to “beyond reasonable doubt”.

Sandra Gidley: The hon. Gentleman makes an interesting point but I will not be sidetracked by it at the moment. One of the points raised by the MDU is that the standard to be applied needs to be clear at the outset of the case. We heard some oral evidence to that effect. At the time I was not sure if I agreed. The MDU says:
“The prosecution, defence and the FTP panel need to know the standard to be applied at the start of the case. It is against this standard that the evidence to be called will be assessed. However, in FTP hearings the fact-finding stage precedes the sanction stage. In many cases the FTP panels will not know at the outset whether the allegations, if proven, are likely to result in suspension or erasure. How then will they know whether they should be applying the highest civil standard?”

Stephen O'Brien: The hon. Lady is wrestling with some of the issues with which we have had to contend. It is important to get things right because many people will study this. It is clear that we agree in principle that the standard of proof should change from criminal to civil, and that there will be a differential standard within civil proceedings—we had some testimony on that matter. However, amendment No. 51 was deliberately designed to address some of her points. It suggests that there should effectively be a criminal procedure coupled with a civil standard of proof. That would mean that if, at the outset or during the course of a hearing, it were to become clear that the consequences were much worse than people originally feared or thought possible, the outcome could be more draconian.
A criminal procedure would mean that the prosecution, for want of a better word, would have to lay out its case in order, as a matter of justice, so that the defence would have sight of the case against it and time to prepare before answering it, whether or not the defendant were put in the witness box, which is quite a big issue. That is why we would recommend amendment No. 51, which would overcome some of the hon. Lady’s concerns through procedure, rather than by affecting the standard of proof.

Sandra Gidley: I thank the hon. Gentleman for clarifying the full implications of his amendment. I have no problem with the basic principle, but it is important to reassure the profession that people will be heard fairly.

Stephen O'Brien: I am conscious that my interventions are long, but these are very detailed and complex legal issues. Amendment No. 51 was tabled because those who are accused of something are better protected by the criminal procedure. A prosecution then has to lay out its case, and it is up to the accused to decide whether they are guilty or not guilty and, if they are the latter, whether to put themselves under oath as part of their defence. That is different from criminal court proceedings, and some things would have to be amended, but that would give the professional in the dock a better ability to decide whether they had a proper defence against the charges, rather than being ambushed during the hearing, which would cause anxiety and also lead to the uncertainty of not knowing the standard of proof that was to be satisfied.

Sandra Gidley: I was not disagreeing with the hon. Gentleman, but merely reiterating that the confidence of the profession is very important. It is one thing to have the confidence of the regulator, but regulators are not always best loved by their professions because they are sometimes regarded as policemen.
What would the change to the civil standard achieve? Its purpose might be to lower the threshold for findings of impairment of fitness to practice, thus bringing more doctors under the FTP panels, yet the GMC itself does not believe the change would achieve that result. A change to the civil standard would import some disadvantages without meaningful benefit. Will the Minister reassure us that this is not just a box that can be ticked as a result of the Shipman inquiry, and that it will improve matters for patients in the long run? Ultimately, that is what we ought to consider. While I do not have a huge problem with the proposed change, I still have to be convinced of the benefit to patients.

Kelvin Hopkins: I recently received a briefing note on behalf of representatives of health care workers below the level of doctor: nurses and other staff in the health sector. For the benefit of my hon. Friends, I think that it is important to put on record that they are concerned about the aspect of the Bill relating to fitness to practice proceedings. The Royal College of Nursing and Unison are concerned about retaining confidence in the system. On their behalf, may I ask the Minister to give us an assurance that a sliding standard will be applied to all fitness to practice proceedings that will be commensurate with the gravity of the allegation and the seriousness of the consequences? It might be that these organisations will be seeing the Minister privately. They might have already seen him privately—I do not know. However, I thought it was important to put this on record.

Stephen O'Brien: The hon. Gentleman raises an important point of principle. We heard a significant assurance when the eminent lawyer, Lady Justice Smith, gave oral evidence. She said that that was integral to the current common law and, indeed, to the practice of various tribunals that are already in existence. What is not in the Bill, however, is any reference to the sliding scale. There is just a move from criminal to civil. The aim of these amendments is to reflect a gradation in the civil standard of proof that would meet the requirements of the constituency that he is seeking to represent. I hope that he will realise that the important point of principle is the need to get some sense of the sliding scale reflected in the Bill.

Kelvin Hopkins: I am grateful to the hon. Gentleman for his helpful intervention. I am not specifically seeking anything in the Bill, but I want an assurance about these matters from my hon. Friend the Minister. I hope that my hon. Friend will take note of representations made both in Committee and elsewhere before coming to a view on the final wording of the Bill before it becomes law.

Ben Bradshaw: I congratulate the hon. Members for Romsey and for Eddisbury on making a better job at putting forward the BMA’s case than it managed. I think that that would be the universal view of the Committee.
I was slightly confused by what the hon. Member for Romsey said. She started by saying that her own profession used the civil standard without any problems, and finished by asking why we were bothering to do this at all. This was one of the main recommendations of Lady Justice Smith that came out of the Shipman inquiry. The reason for it, however, is that which she and even the GMC and others gave in our evidence sessions. At the moment, because we have the extremes of either something drastic happening, or nothing happening at all, there is a reluctance to intervene early in a case. An example would be Shipman, or cases in which someone’s professional conduct might not be serious enough to warrant their striking off, but when another form of intervention and the flexibility to intervene in another way, helped by the civil standard of proof, might prevent something much more serious from happening. This relates to a question asked by the hon. Member for Eddisbury about the numbers of cases that we expect the independent adjudicator to see.
With this system and with the responsible officers in place locally, fewer cases should need to go to adjudication in the end because more of them will be nipped in the bud. As Sir Graeme Catto said in evidence, more cases will be dealt with locally and will not have to be escalated up. This is also about increasing public, patient and employer confidence in the regulator’s ability to tackle all types of cases, creating a system that is consistent across all health and social care, and setting up a framework that will encourage employers to act more proactively when previously a practitioner who might have needed help has evaded action by the national regulator. This was one of Dame Janet’s main recommendations. In our evidence session, she said that it was the right thing to do because
“we are talking about a protective rather than criminal jurisdiction”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 40, Q71.]
The GMC is already moving towards the civil standard of proof. Professor Sir Graeme Catto, in his evidence to the Committee, stated that six of the regulators had already moved to the civil standard, that it was working well for them, and that he did not see any reason why it should not work well for doctors. Although the BMA has managed to generate a few letters to members of the Committee and other Members of Parliament, Sir Graeme told me that the GMC itself had received only 50 letters from doctors protesting about a move to the civil standard of proof. The implication was that that was not very many.
It is right that there is no sliding scale in the Bill. That will be a judgment call for the panel, using the civil standard as described by Lady Justice Smith, which can be applied flexibly and can take account of the gravity of individual cases and how serious the outcome of proceedings might have been for the individual. More serious matters would require a heightened standard of proof, as is the case now. The courts recognise that the civil standard is a flexible standard that should be applied with greater or lesser strictness according to the seriousness of what has to be proved and the implications of proving it.
Amendment No. 50 seems to be an attempt to clarify in the Bill that the civil standard of proof would be applied only to the finding of facts in FTP proceedings, not other parts of proceedings. However, we do not think that that is necessary because the clause can apply only to the finding of facts. The standard of proof is applied by the panel or committee when it is considering the evidence presented before it, and the evidence relates to whether the alleged events occurred.
The hon. Member for Tiverton and Honiton asked whether guidance would be issued to doctors to help them to get used to the new standard. We expect the GMC to issue guidance on this. The Office of the Health Professions Adjudicator will have a duty to make information on its functions public, and the Council for Healthcare Regulatory Excellence could have a role in making sure that there is clear guidance, and we have already asked it to look at doing so.
The hon. Member for Eddisbury raised the issue of consistency in applying the civil standard. We have also asked the CHRE to look at how it can ensure that there is consistency. Regarding appeals, individual practitioners will be able to appeal to the High Court if they feel that they have been unfairly treated.
Amendments Nos. 51 and 57 would place a new requirement on the regulators to ensure that their procedural rules are in keeping with those used for criminal court cases in certain circumstances. We have a problem with that because it would completely change the way in which regulators approach their hearings. In practice, that would mean that matters such as disclosure, jury trial, representations as to venue for hearing, rules relating to evidence of character and hearsay evidence would be subject to the types of provisions that apply to the criminal procedure.
If we accepted the amendments, regulatory bodies that have been successfully using much simpler approaches in their FTP hearings would find that they had to use more adversarial, time-consuming and costly approaches with no added benefit to the individual practitioner or the public. It is important that we emphasise that the hearing panel is undertaking a protective role. It is not acting as a criminal court or applying the criminal law. The purpose of the regulatory action is to protect the public, not to punish the practitioner, and that is almost exactly what Lady Justice Smith said in her evidence. It would therefore be wholly inappropriate to impose the rules of criminal proceedings on professional regulatory proceedings.
I congratulate the hon. Member for Eddisbury on doing a better job that the BMA of trying to make its point about defensive medicine. I found it very difficult to appreciate the exact point that the BMA was trying to make, but I think it was that, under the criminal standard, professionals might choose more risky, but potentially more effective, clinical interventions. We do not believe that health professionals will behave in that manner as a result of the change. We are confident that their high professional standards and commitment to patients will guard against the risk. However, when there is doubt, uncertainty or significant risk in making such judgments, health professionals who usually work in a team of other professionals would generally make such decisions in consultation with their colleagues to ensure that there was a consensus of expert opinion. In addition, when such circumstances exist, clinicians are professionally obliged to ensure that they receive informed consent from their patients. I hope that my comments have reassured the hon. Members and that the hon. Member for Eddisbury will see fit to withdraw the amendment.

Stephen O'Brien: I listened carefully to the Minister and I am grateful that he took us carefully through those items. I am glad to hear that the CHRE is looking at the potential worries about the question of fairness both between hearings and within hearings, where there might be different applications of different standards by different chairmen. The debate on clause 93 about the potential for a legally qualified chair of the panel could be important. The Minister has undertaken several times to go away and think that through, and we will possibly revisit it on Report. I would welcome that, and the need for it is reinforced by what we have just heard. There is an expectation that there will be fewer fitness to practise hearings, and if the chairs were legally qualified I suspect that the hearings would rattle on nicely and be unlikely to be lengthier.
I emphasise a point that the Minister did not touch on, as I think it is vital. It was also brought up Lady Justice Smith. For the chairmen—legally qualified or not—to work well, particularly given the approach that he is taking on procedure, training will be key. If training is seen as a priority, and that is vital, I will be happy.

Ben Bradshaw: I apologise for omitting to respond to that. I can reassure the hon. Gentleman that we have requested advice from the CHRE on how to make the transition to the civil standard as smooth as possible, including the need for training and any other needs of panel members. We have also asked for advice on changes in the procedural process and the administrative arrangements, and on how best, in the council’s opinion and that of individual regulatory bodies, any difficulties in the areas that he has mentioned can be overcome.

Stephen O'Brien: I am grateful for that. It is helpful. I noted that the Minister was not keen to adopt the criminal style of procedure, notwithstanding application of the civil standard of proof, to give better potential protection to professionals who find themselves under scrutiny. However, I will not press that point.
I hope that as a result of the debate the Minister and his officials will reflect that it was not a question of tilting towards—although I fully understand the phrase—making sure that we are focused on protecting the public and therefore not seeking to punish the practitioner. I practised at civil courts and in arbitrations for some years. The point about the criminal process as opposed to the civil standard process is that there is always the hope that during cross-examination, despite the rules of discovery, one will end up with a wonderful nugget of a time bomb or an ambush in order to achieve success of the law. The whole point about the criminal procedure is that it is up to the prosecution to lay out its case so that the defendant can make sure that he is fully aware of what is against him and can prepare to make the best defence available.
The protection of the practitioner—in fact, the whole process that we are discussing—is secondary to protecting the public. That is consistent with what Lady Justice Smith was absolutely determined to do as a result of her reports on the Shipman inquiry. To make sure that we hold on to her priority, it is right that we enable a sense of fairness and justice in the process with the profession. That is the best answer to the BMA’s issues about defensive medicine. While I am grateful for the Minister’s flattery about making the case, I was as unpersuaded as he was about that particular risk. He also read out what I had cited as good reasons for not accepting that evidence. The BMA raising the issue on behalf of practitioners made it incumbent on us to look at the matter seriously, which we have done. On the basis of our discussion, it is wholly appropriate to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 104 ordered to stand part of the Bill.

Clause 105

The Council for Healthcare Regulatory Excellence

Kelvin Hopkins: I beg to move amendment No. 249, in clause 105, page 51, line 32, leave out subsection (3) and insert—
‘(3) After subsection (2) of that section insert—
“(2A) The main objectives of the Council in exercising its functions under subsection (2)(b) to (d) are—
(a) to protect the public through encouraging consultation between the regulators and such other parties as the Secretary of State shall by regulation define about the functions of statutory professional regulation, and
(b) to protect the health, safety and well-being of patients and other members of the public in co-operation with such other regulatory agencies as the Secretary of State shall by regulation define.”’.

Derek Conway: With this it will be convenient to discuss the following amendments: No. 127, in clause 105, page 51, line 34, leave out ‘promote’ and insert ‘protect, promote and maintain.’.
No. 253, in clause 106, page 52, line 39, leave out ‘promoted’ and insert ‘protected’.
No. 254, in clause 106, page 52, line 43, leave out ‘promote’ and insert ‘protect’.

Kelvin Hopkins: I am pleased that my hon. Friend the Member for North-West Leicestershire (David Taylor) is present to hear our debate. I hope that I can do justice to his amendments, which I support.
The concern is to strengthen the role of the CHRE and to firm up the clause by substituting “protect” for “promote”. “Protect” is a stronger word and conveys what we want the CHRE to do. We also want to make more definite and specific the role of the CHRE in its operations. The proposed wording would be a significant improvement and I hope that it will be accepted. The word should clearly be “protect”, for the CHRE is the overarching body charged with being the
“authoritative independent voice for patients on the regulation of professionals”
in health care, to quote from the White Paper “Trust, Assurance and Safety—The Regulation of Health Professionals in the 21st Century”.
Regulators, such as the GMC, have had public protection as part of their remit, and that should not be weakened in the CHRE by merely requiring it to promote the health, safety and well-being of the patients. We should be strengthening patient protection. I hope that my hon. Friend will look again at the wording of the clause.
More generally, the Minister will be aware that ever since the community health councils were abolished Labour Members have been concerned about the strength of protection for patients and of patient representation, and about the opportunities for patients to seek redress in their problems with the health care sector. I am still concerned that we do not have strong enough protection and representation for patients. I want the shop-front approach to patient representation that was provided in my community by the community health council. Ordinary people—not necessarily skilled or articulate—could go and talk to someone who was sympathetic about their problems. The patient advice and liaison service inside hospitals has to some extent compensated for that, but it is not the same as the community health councils. We need stronger representation.
Our wording would reassure me and others, such as my hon. Friend the Member for North-West Leicestershire, who are concerned. He spoke at length on Second Reading and made the points more effectively and strongly than I can. I agreed with his speech, which I have since read. I hope that my hon. Friend the Minister will think seriously about altering the wording.

Sandra Gidley: The Liberal Democrats have tabled amendment No. 127, which has a broadly similar aim to amendment No. 249. The definition for the main objectives of the CHRE as it stands says that the council is
“to promote the health, safety and well-being of patients and other members of the public.”
Our amendment would change that to
“to protect the health, safety and well-being of patients and other members of the public.”
Health promotion is laudable, but it is not the same as protection. There is a need for consistency between the objectives of the CHRE and those of the regulators. The Bill as drafted does not replicate the precise wording of the objectives set for regulators, which recently amended legislation describes as to “protect, promote and maintain” the health, safety and well-being of members of the public and patients. Our fairly simple amendment would bring those strands of legislation into line with each other so that there are no conflicts and everybody is clear about what the duty is.
Public protection is what this Bill is all about and it is somewhat surprising that protection has been left out of the clause. I am hoping that we may strike lucky—[interrurption.] I see that the Minister is going to disappoint me. On that note, I shall sit down.

Stephen O'Brien: On this occasion I also have to disappoint the hon. Lady. I have looked carefully at the amendments, and pay tribute to the hon. Members for Luton, North and for North-West Leicestershire for their wonderful support when we had the great campaign on community health councils, with which I was particularly involved.
I have difficulty with the amendment, but not because I do not agree with the sentiment or the ambition behind it. I note that the next group of amendments covers whether the CHRE should have more teeth in its investigative powers, but it strikes me that “promote” is more relevant to the purpose for which the CHRE is designed—in other words, advocacy rather than protection. The intention is not for it to be the ultimate regulator with teeth. While we have this current design of the CHRE, “promote” probably accords with the advocacy role more precisely.
It is a wholly appropriate and proper debate for hon. Members to advance, because we still have an outstanding issue about patient and public involvement and about having sufficient independence to move from pure advocacy to a hand-holding job, particularly for the vulnerable, that helps them to chart their way through a difficult NHS access or complaints procedure. Those vulnerable people often continue to have the greatest need of that. They are therefore reluctant to get offside of the very body about which they have concerns.
Perhaps there is another debate to be had about whether we should be looking to get something more independent—the CHCs—back in the frame. That is for another day and this is not the vehicle to take matters forward.

Ben Bradshaw: The Government agree that the council needs to be an authoritative, independent voice for patients and members of the public on the regulation of professionals. We made that clear in the White Paper “Trust, Assurance and Safety”. We believe this new objective achieves the intention set out in the White Paper. The Bill gives the CHRE a new main objective that underlines the exercise of its duties with the interests of both patients and the wider public in clauses 1 and 5. This will allow it to act as the independent voice for the patient and the public on health care professional regulatory issues. The CHRE’s new board structure will be mainly lay with no regulatory body representatives, as is the case currently, and the CHRE will have a new duty to inform and consult the public about the exercise of its functions
Clause 105 inserts the new main objective of the council in exercising its function into section 25 of the National Health Service Reform and Health Care Professions Act 2002. The current functions set out in that Act are to
“promote the interests of patients and ... public...best practice”—
in professional regulation—
“cooperation between regulatory bodies”—
and
“to formulate principles relating to good professional self-regulation”.
The council’s new objective requires it to consider, when carrying out its functions, how it will promote the health, safety and well-being of patients and other members of the public, which is a stronger objective and requirement.
The amendments tabled by my hon. Friend the Member for Luton, North would extend and change the council’s new main objective from promoting to protecting. Amendment No. 249 also specifies that the council’s function should be undertaken by encouraging consultation between the regulators and other regulatory agencies, and would confer a new power on the Secretary of State to define in regulations such bodies as the council should be required to consult and/or to cooperate with.
The amendments are not necessary. The council is already required to promote the health, safety and well-being of patients and other members of the public. That duty already encompasses protection of the public. I would emphasise that, in fact, the use of the term “promote” rather than “protect” confers a wider duty on the council. The term “protect” might also imply direct contact with patients and the public, which might misrepresent the function of the council, which, as the hon. Member for Eddisbury rightly said, is an advisory rather than regulatory body. We considered whether the term “protect” would be better, but were advised that, because the CHRE has an advisory role rather than a regulatory one, that would not be appropriate. In view of that, I hope that my hon. Friend will withdraw his amendment.

Kelvin Hopkins: I thank my hon. Friend for his reply. I am disappointed that he has not accepted the amendment at this stage, but I understand his argument. I hope he will recognise that there is a concern about making absolutely certain that, in the future, patients are strongly represented in relation to health care professionals. There was some suggestion that the wording was an oversight, and it is interesting that he has said there was at least some discussion about the alternative wording. I hope the spirit of the amendments will infuse the Government’s future legislation on these matters, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Derek Conway: With this it will be convenient to discuss the following: Government amendment No. 122.
Government new clause 6—Powers and duties of Council for Healthcare Regulatory Excellence.
Amendment (a), in line 7, leave out ‘investigating particular cases’ and insert
‘reviewing cases for the purposes of audit’.

Stephen O'Brien: In many ways, it is amendment (a) that I need to address, as that is our amendment to Government new clause 6, which the Minister will no doubt give his reasons for in a second. The new clause amends the National Health Service Reform and Health Care Professions Act 2002, and relates to the investigative powers of the CHRE. The White Paper “Trust, Assurance and Safety” specifies that the Government will ask the CHRE to review a sample of cases. The Government’s new clause could be interpreted as giving the CHRE a power to investigate individual cases, which is not consistent with the general purpose of audit. The amendment to new clause 6 would therefore remove any confusion about how this audit would be conducted.
There is a real concern that, as it stands, the drafting of the legislation could give rise to confusion about the purpose of a power given to the CHRE. The powers would allow the CHRE to look at individual cases as a quasi-appeals process, rather than for the purposes of identifying suggested improvements in performance. Patently, if one looks at individual cases—from which, it may be claimed, lessons might be learned—rather than at a sample of cases, the danger is that it could become a quasi-appeals process and start to be hijacked, particularly by some eagle-eyed lawyers who, no doubt, will pore over all this. Of particular concern is that it could also cause confusion with CHRE’s current powers, but not when OHPA is set up to appeal against decisions by the fitness to practise panels of each regulatory body. We need to look at both the transitional arrangements and that potential overlap. There will, of course, be ongoing cases, and we need to be very careful that we do not end up with parallel tracks, at least for a period of time, operating under different systems. One could only imagine the number of challenges there might be to that process.
There is also the further question of independence. CHRE is an organisation that is directly accountable to the Secretary of State, and it would be better if any appearance of political pressure for CHRE to look at individual cases were removed. That is a fairly comprehensive justification for the amendment, which would clear up hon. Members’ concerns.
I hope that the Minister will outline why the CHRE is limited to health care only. We touched on this, but it remains unresolved. Its role is not to oversee social care regulators. There is no independent oversight of the four social care councils, whereas the nine regulators of health professions are scrutinised by the CHRE. The social care councils regulate 110,000 registrants and there are more than 2.3 million service users in the UK. Each council has its own plans for phasing in new additions to their registers in the coming years, which on their estimates could total over 250,000 new workers. Health and social care work is an increasingly integrated process. Patients and service users should be confident in shared standards of behaviour and procedures when things go wrong.

Sandra Gidley: I wanted to raise a few general stand part comments, which are similar to those raised by the hon. Gentleman. The clause officially changes the name of the Council for the Regulation of Health Care Professionals to the Council for Healthcare Regulatory Excellence, although in practice it has had the latter name for some time. Currently, it promotes best practice and consistency of regulation among nine bodies representing medical professions: chiropractors, dentists, doctors, opticians and related people, osteopaths and the Health Professions Council, which encompasses a range of professionals, nurses, midwives and pharmacists.
The aim elsewhere in the Bill is to join up health and social care inspection, but it seems that that has been missed in this part. What is lacking is any kind of joined-up thinking between the regulation of health professionals and regulation of social care professionals. It makes sense, therefore, at some stage, to bring the General Social Care Council for England and the related devolved bodies under the umbrella.
I thought that rather than try to move an amendment at this stage, as all the others have failed, it would be useful to introduce the principle as part of the stand part debate. I hope that the Minister will acknowledge that this is a very good idea, because it cannot be right that a nurse in a nursing home and a social care worker in the same environment are regulated by two bodies which may not be united in the way they oversee their respective professions and understand best practice.
I admit that, when I met the CHRE, I questioned whether it had given any thought to this matter. It said that it had not. It later got back to me saying that it had spoken to a few people in the social care environment and the feedback had been positive. If the Minister thinks that this is a good idea, perhaps he will consider tabling an amendment on Report, which we may be minded to support.

Ben Bradshaw: New clause 6 amends section 26(3) of the 2002 Act to clarify that the Council for Healthcare Regulatory Excellence can investigate individual cases solely for the purpose of providing general reports on the performance of regulatory bodies. Amendment No. 122 is a necessary consequential amendment, because the new clause has a UK extent.
The new clause does not confer any additional functions on the council, but means that we will avoid possible disputes about whether the council has the power to consider individual cases when making investigations and reporting on the performance of statutory functions of regulatory bodies. Amendment (a) to new clause 6 would replace the words “investigating particular cases” in proposed new section 26(4)(c) of the 2002 Act with the words:
“reviewing cases for the purposes of audit”.
I think that the hon. Gentleman’s intention in the amendment is the same as ours—to avoid extending the competences of the new body. However, we are concerned about the word “review”, because a review is usually associated with the ability of an organisation to reconsider the evidence and facts of a case with a view to confirming, amending or overturning a decision. New clause 6 has the same intention, and will make it clear that we are not giving additional functions to the council that would provide it with the power to overturn decisions, to re-examine evidence in individual cases or to reconsider the original decision. Indeed, such a power would be inconsistent with the general functions and purpose of the council.
The hon. Member for Romsey asked why we are not extending the remit of the CHRE to social care workers. I am advised that that was carefully considered during the Bill’s early stages. However, because social care workers are not generally regarded as health professionals, the regulation of whom is the subject of this discussion, the view was taken that the remit of the CHRE should not be so extended. However, I shall ask for more information on that and maybe write to her about it.

Stephen O'Brien: I am conscious that this is a clause stand part debate, but we are also talking about amendment (a). I am equally concerned that “review” carries some of those implications mentioned by the Minister—perhaps that is my legal training coming back to haunt me. I am more than happy, therefore, not to press amendment (a) to a Division. However, I also think that “investigating” implies that there will be an outcome to an investigation. It might be worth reconsidering that in order to determine whether more felicitous language could be used to achieve what we both want.

Question put and agreed to.

Clause 105 ordered to stand part of the Bill.

Clause 106

Constitution etc. of Council

Kelvin Hopkins: I beg to move amendment No. 250, in clause 106, page 52, line 7, leave out ‘one executive member’ and insert ‘two non-executive members’.

Derek Conway: With this it will be convenient to discuss the following amendments: No. 52, in clause 106, page 52, line 13, leave out ‘three non-executive members’ and insert ‘one non-executive member’.
No. 251, in clause 106, page 52, line 13, leave out ‘three’ and insert ‘seven’.
No. 53, in clause 106, page 52, line 14, after ‘State’, insert—
‘( ) two non-executive members appointed by the Appointments Commission.’.
No. 163, in clause 106, page 52, line 14, after ‘State’ insert—
‘( ) one non-executive representative of the regulatory bodies.’.
No. 252, in clause 106, page 52, line 15, leave out ‘two executive members’ and insert ‘one executive member’.
Eagled-eyed Members will have noticed that amendment No. 365 refers to leaving out “one executive member”, when it should say, “one non-executive member”. I mention that to ensure that we are all singing from the same hymn sheet.

Kelvin Hopkins: The amendments deal with the membership and composition of the CHRE, and would, among other things, increase the number of Scottish members from one to two and the number of English members from three to seven, and cut the number of CHRE executive members from two to one. If the overriding objective is a UK-wide approach to professional health care regulation, we need to acknowledge the need to continue and strengthen the relationship with Scotland, something that I suggest is politically important at the moment—I do not think that any Scottish Members are present today, but I hope that if there were they would support what I am saying—by having a more Scotland-specific view. Other UK-wide bodies, such as the Food Standards Agency, have two non-executives from Scotland, so why not the CHRE?
There is increasing fragmentation of health care across England, and CHRE needs to be able to reflect that in its composition, diversity and size. The extra English members will also provide reassurance that the CHRE council has the capacity to reflect a range of experience and expertise to span existing and additional functions indicated in the Bill. The CHRE’s senior executives already prepare council papers, attend, contribute and sit alongside council members and have considerable opportunity to influence CHRE decision making before, during and after council meetings. It would be more appropriate, and in keeping with the spirit of the White Paper, to focus on strengthening the CHRE’s lay membership. Our amendments are designed to achieve that through increasing English and Scottish membership, and therefore the council’s capacity to be, in the words of the White Paper, a truly
“authoritative independent voice for patients on the regulation of professionals, providing expert advice on policy”.
I think that I have made the case, and hope that my hon. Friend the Minister will be sympathetic to it.

Stephen O'Brien: I think that what the hon. Member for Luton, North is trying to achieve is not dissimilar to what we want to achieve. The power of appointment is always a difficult area, because at this stage it can look rather benign, but it can in practice prove very influential and representative.
Our amendment. No. 52 would limit the Secretary of State to appointing one non-executive member in line with one from Scotland and one from Wales. Amendment No. 53 is consequent on that, giving the Appointments Commission the power to appoint the other two. The question that the provisions pose to a Government who purport to believe in devolution is why the devolved Administrations are in this context subordinate to the Secretary of State. Our amendments Nos. 52 and 53 are intended to obtain equality, in effect, between the Secretary of State and his counterparts in the devolved Administrations, notwithstanding the fact that, to go by the Secretary of State’s response when challenged on Second Reading, all appointments are likely to be devolved to the Appointments Commission in any event. I seek some guidance about representative capacity.
Amendment No. 163 would leave on the CHRE some representative of the regulators. While in my view, currently, the council of 19 members, with every regulator represented, might be unwieldy, surely it is not right that their voice should be completely silenced, which is why the amendment would preserve it.

Ben Bradshaw: The reason we are reforming the Council for Healthcare Regulatory Excellence is to ensure that it fits with the new regulatory landscape, including shifting its role from being the sum of the existing regulators to being the independent voice of the patient. Part of the change, we believe, merits reducing the size of the council from the rather large membership of 19 to nine—seven non-executive and two executive. That is consistent with the Government’s general approach in trying to make the professional regulatory bodies more board-like and strategic.
The amendments would significantly increase the size of the council, bringing it back up from nine to 16, and would alter its make-up by adding a non-executive member representing the regulatory bodies. Amendment No. 53 specifically would add two further non-executives appointed by the Appointments Commission alone. As I have said, it is already our intention for the Secretary of State to arrange for his appointments functions to be exercised by the Appointments Commission anyway, which I hope renders the amendment unnecessary.
I am particularly concerned about amendment No. 163, because of the point that I have just made. I am not clear whether the regulatory bodies would collectively nominate the member. The important point to note, however, is that the function of the council is changing, so that the CHRE can promote the interests of patients and members of the public in relation to the performance of regulatory bodies and be an authoritative independent voice on the regulation of professionals. It is not appropriate for regulatory bodies themselves to delegate or to send a representative to the body that regulates the professions.
On the point about Scotland, I hope that I can reassure my hon. Friend the Member for Luton, North. The change has already been agreed, and the Scottish Parliament has agreed to legislate a consent motion for the Bill. It is therefore content with the level of Scottish representation. I was trying to find out about the size of the FSA board and whether there are similar plans to downsize it, but I have not managed to do so in the time available. If I can find that out offline, I will let my hon. Friend know.
Amendment No. 252 would decrease the number of executive members to just one. That would not be consistent with usual practice among other arm’s length bodies sponsored by my Department and others. For example, it is common practice for regulatory bodies to include their finance director on the board or council, and it obviously makes sense to allow the CHRE to follow that example if it so wishes.
In the light of those reassurances, I hope that my hon. Friend and the hon. Member for Eddisbury will not press their amendments.

Kelvin Hopkins: I thank my hon. Friend for his response, particularly on the Scottish point, and I entirely accept what he says. As he may recall, emphasis was placed during the hearings on the importance of having diverse representation on all health bodies, particularly in constituencies such as mine, and it is important for people from minorities to be genuinely represented. I will not press my amendments to a vote, but I hope that my hon. Friend will seek to ensure that diversity in gender and everything else is properly reflected in public appointments to all these bodies.

Stephen O'Brien: I shall not press my amendments to a vote because we have had our debate, and it has been helpful to have a bit more clarity from the Minister on the issue, although we may return to it. Clearly, this is an important issue, and I dare say that we shall all do some more thinking about it.

Kelvin Hopkins: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Stephen O'Brien: I beg to move amendment No. 164, in clause 106, page 52, leave out line 27.
The amendment can be dispatched very quickly, and I almost feel inclined to say, “Give us a break.” The clause seeks to replace the word “chairman” in the 2002 Act with the word “chair”. I could do a complete rant about political correctness. We have all moved on and we do not need to go back and completely redraft everything. I really think that the provision smacks of “Animal Farm”, and we could do without it. I therefore hope that the Minister will accept my amendment so that we can move on quickly.

Ben Bradshaw: I imagine that the Equal Opportunities Commission would take exception to being compared to “Animal Farm”—

Stephen O'Brien: I was not talking about the commission.

Ben Bradshaw: Yes, but it is the commission’s recommendation that we are carrying out by replacing the term “chairman” with the term “chair”. If the hon. Gentleman really wants to take up the Committee’s time by debating the issue at length or putting it to a vote, that is his call.

Stephen O'Brien: It is not worth the time. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 106 ordered to stand part of the Bill.

Clause 107

Powers of Secretary of State and devolved administrations

Stephen O'Brien: I beg to move amendment No. 207, in clause 107, page 53, leave out lines 13 to 17.
The amendment seeks to remove the Secretary of State’s power to direct the CHRE. The council is another of those so-called independent bodies in the Bill whose governance leads inexorably back to the Secretary of State. In response to a question from my hon. Friend the Member for Tiverton and Honiton during the evidence sessions, Lady Justice Smith said that,
“it is important, particularly in the health sphere, that the adjudicatory body should be seen to be independent of Government because the Government are a huge customer of healthcare; the biggest customer of healthcare. Therefore, it is important that there should be no suspicion that the Government are in a position to pull strings behind the scenes, as to what goes on. Absolute clarity and absolute independence are really important. ——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 42.]
On the basis of that, I rest my case.

Ben Bradshaw: As I have said before in relation not just to the CHRE but to the Healthcare Commission, there is no intention to fetter the body’s freedom. The reason for this power is to ensure that, where necessary, a Secretary of State can ask the council to prioritise certain areas of its work load over others: for example, in cases in which there is particular public concern about a certain regulatory issue, or in which the expert input of the council is required in a particular Department of Health project. The powers could also be used to require the council to consult specific bodies, including the public, in undertaking its duty to inform and consult, which we discussed earlier. I hope that in the light of that explanation the hon. Gentleman feels reassured enough to withdraw his amendment.

Stephen O'Brien: Yes. We will probably have to allude to the matter on another occasion. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 107 ordered to stand part of the Bill.

Clause 108

Duty to inform and consult the public

Kelvin Hopkins: I beg to move amendment No. 255, in clause 108, page 53, line 37, leave out ‘seek the views of’ and insert ‘consult’.

Derek Conway: With this it will be convenient to discuss the following amendments: No. 256, in clause 108, page 53, line 40, at end insert—
‘(c) such other organisations representing patient and public interests as the Secretary of State shall by regulation specify.’.
No. 257, in clause 108, page 53, line 41, after ‘matters’, insert ‘of policy’.
No. 258, in clause 108, page 53, line 41, at end add—
‘(5) The Council must—
(a) consult with public and patient organisations in England, Scotland, Wales and Northern Ireland on its work programme, including—
(i) the standards,
(ii) minimum requirements, and
(iii) supporting evidence, to be used in its regulatory performance review, and
(b) publish at least annually a report on its consultations in England, Scotland, Wales and Northern Ireland held in accordance with this section.’.

Kelvin Hopkins: The amendments seek to strengthen clause 108 by inserting in subsection (4) the word “consult” instead of “seek the views of”. It seems strange that the word “consult” is included in the clause heading and is then softened further down to “seek the views of”. The process of seeking views is less active, less mutual and weaker than the process of consulting. Consulting is a two-way process; “seeking the views of” is a one-way process. I, therefore, ask my hon. Friend the Minister to consider seriously this amendment.
The other component of my amendments would give more powers to my hon. Friend, or the Secretary of State, to specify other organisations that might be consulted. Proposed subsection (4)(c) would give the Secretary of State—in addition to the council—powers to specify other bodies that might represent patients and the public. It seems to me that giving extra powers to the Secretary of State might appeal to my hon. Friend, and I hope that he accepts the amendments. The firming up of the clause would be welcomed by those who are concerned about public and patient representation in health.

Ben Bradshaw: As my hon. Friend has rightly pointed out, the CHRE will have a new duty to inform and consult the public about the exercise of its functions in the clause. That comes on top of the new main objective that we have already discussed about aligning the exercise of its duties with the interests of both patients and the wider public, and the improvement in the new board structure, which will be mainly lay with no regulatory body representatives. His amendment, however, would tie the CHRE’s hands as to how it consults. The view of the council’s current chief executive, which we share, is that such formal consultation as my hon. Friend refers to may not always be the most appropriate way to take soundings from people.
I am sure that my hon. Friend will know from his own experience that formal consultation with particular groups can be dominated by what one might unkindly call groups of self-selecting busybodies, rather than reflect a true sense of public feeling in a particular area. The council’s chief executive thinks that it may need the flexibility to use a quorum, academic studies, focus groups and other means of engaging with patients, the public and stakeholders, depending on the gravity and complexity of the issue at hand, as well as traditional formal consultations. It would not be helpful to tie the council to the latter.
We believe that the CHRE will be capable of making the right decisions about how to consult on particular issues, but as my hon. Friend has probably noticed, it will be possible use the new Secretary of State power to issue directions to the council on the manner in which it must exercise its functions. We have that safeguard if we feel that it is not consulting properly. As we discussed earlier, the council also has the obligation to promote best practice and good regulation, which will include good consultation.

Stephen O'Brien: As the Minister has seen, I did not participate in the debate on the amendments, but he has just prayed in aid the fact that he could use the Secretary of State’s reserved power to direct. That is what causes us some concern about independence. There is tension in the Bill between seeking to protect by having a power of direction and convincing many of us that there will be sufficient independence.

Ben Bradshaw: We think it a sensible balance, which will meet the concerns expressed by my hon. Friend that the body might not consult adequately. It will provide a way for hon. Members to express their concerns, so we think that it is a sensible power to keep. We do not expect to have to use it.
On my hon. Friend’s amendment No. 258, paragraph 16 of schedule 7 to the 2002 Act already requires the council to
“prepare a report on the exercise of its functions during each financial year”,
so we do not think the amendment on that matter is necessary. The report that the council is required to table under the 2002 Act should include details about how it has undertaken its duty to consult and inform the public.
Although the amendments in the group are well intentioned, they are not strictly necessary. They are more prescriptive than the proposals in the Bill and would not enable anything that is not already possible given the council’s existing powers. In that light, I urge my hon. Friend to withdraw the amendment.

Kelvin Hopkins: I am rather disappointed that my hon. Friend has not at least accepted the amendment to substitute “consult” for “seek the views of.” There is a difference, and I know from my experience of dealing with health bodies in my constituency and local area that some health officials—I shall not name names—are less than enthusiastic about consulting the public. They will receive a letter and say, “Thank you very much”, but when it comes to consultation they are less enthusiastic. Sometimes we want to get our point across; we have an active patient and public involvement forum, with a redoubtable chairperson who would undoubtedly be considered a busybody by the health authority but is a fine representative of my constituents and a personal friend of mine.

Angela Browning: I wish to articulate the thought that went through my mind when the Minister talked about “busybodies”. I can think of several people whom he might describe as busybodies, who are usually fine women of a certain age past whom no detail goes without their ensuring that it gets to the right desk. We need a few more busybodies examining what is going on in the health service. The fact that they do that in their free time is an asset.

Kelvin Hopkins: I did not want to start that hare running, but I say to the hon. Lady that I will not pass on the word “busybody” to my dear friend locally who is chair of our PPI forum and does a splendid job, especially as she happens to be, privately, a member of our party as well, which would probably automatically come under the general category of busybody. Our job as representatives is sometimes to be busybodies and I am a bit of a busybody myself. I hope that the Minister will think further on these matters and the wording of the provision and perhaps return with an improvement to the clause at a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 108 ordered to stand part of the Bill.

Clause 109

Reference of cases by Council to court

Sandra Gidley: I beg to move amendment No. 234, in clause 109, page 54, leave out lines 7 to 11.

Derek Conway: With this it will be convenient to discuss the following amendments: No. 235, in clause 109, page 54, line 27, leave out from ‘Committee)’ to end of line 31.
No. 236, in clause 109, page 54, line 38, leave out from ‘Committee)’ to end of line 42.

Sandra Gidley: This is a probing amendment. Clause 109 amends section 29 of the Health Care Professions Act 2002, extending section 29 of the Act to enable the CHRE to refer to the High Court cases relating to impairment of fitness to practise on grounds of ill health. That is in addition to its existing powers to refer cases relating to misconduct and professional competence.
I tabled the amendment because of concerns relating to the fact that, currently, health cases are generally private proceedings. I have concerns about sensitive details on an individual’s health eventually being made public in ways that might not be helpful to that individual. My concerns might be covered by clause 98(4)(d), but I am still not sure whether that is the case, despite some discussion about it this morning.
I hesitated slightly about drafting the amendment in this way, as I did not want to create a loophole whereby an individual who realised that they had done wrong could somehow try to present a case as a health case. An argument might be made for something to be heard by a health committee rather than a disciplinary committee. I was not sure how that might work in practice. Clearly, if that was a consequence of my amendment, it would be problematic, because we are trying to achieve greater openness about misdoings generally and it would be contrary to that spirit.
However, it would be helpful if the Minister could explain why it was thought necessary to widen the scope of CHRE referrals. Has he any examples of where the system has failed? Bearing in mind that the cases referred are those the CHRE believes too lenient, does he not have concerns that if the CHRE has got it wrong the personal details of people on whom a judgment has been made may be subjected to greater public view than necessary? Can the Minister clarify how many cases have been referred to the High Court to date by the CHRE and what proportion of them have been judged by the Court to be too lenient—in other words, where it has upheld the concerns of the CHRE to a certain extent?

Ben Bradshaw: I cannot give the hon. Lady the figures that she asks for but I shall endeavour to find them and let her have them. However, she accepts in her comments that there may be circumstances in which the physical or mental health of a health care practitioner may impact on their conduct or ability, and consequently have implications for the safety of their patients or the wider public. We believe therefore that the health committees of regulatory bodies have a role in ensuring patient and public safety in the same way as conduct and competence committees, because patient safety must be the priority.
However, we fully support the need to handle cases of ill health with sensitivity, as we discussed when we covered hearings in private. The need for better support and rehabilitation for professionals struggling with health problems was recognised in our White Paper, but whatever the cause of poor performance, patient safety must come first, and we are clear that professionals who pose a risk to patient safety must be identified and dealt with appropriately but sensitively.

Sandra Gidley: I am still not entirely clear about the circumstances in which private details, such as mental health details, will be kept private. All the professions will be interested in greater clarity about how the provision will work in practice, because we are talking about somebody’s potential livelihood, and about cases in which people might get better. Mental health problems are rarely understood and are often viewed unsympathetically by those without expertise, and I do not want to be party to legislation that has the potential to lay details of somebody’s mental health problems open for all to see. At a later date, the person might fully recover, but that knowledge of their problem might prevent them from obtaining employment. I understand that it is a stigma problem, but it is essential that we get the balance right. However, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 109 ordered to stand part of the Bill.

Clause 110

Responsible officers and their duties relating to medical profession

Stephen O'Brien: I beg to move amendment No. 54, in clause 110, page 56, line 27, at end insert—
‘(7A) The responsible officer must be clinically qualified.’.

Derek Conway: With this it will be convenient to discuss amendment
No. 80, in clause 110, page 56, line 35, at end insert—
‘“clinically qualified” means qualified in a manner that the Secretary of State shall by regulation define.’.

Stephen O'Brien: The clause sets out the framework for responsible officers, so obviously many Committee members will have been waiting with bated breath to reach this crucial aspect of the Bill. Amendment No. 54 would ensure that the responsible officers were clinically qualified professionals—to be determined by regulations. Responsible officers should be medical professionals rather than health care managers or management consultants, for example. Doctors have also expressed concern that responsible officers should not be the same medical directors of primary care trusts under whose authority the various doctors work.
This discussion should be framed by the concerns raised by Lady Justice Smith during her oral evidence. She told us:
“I really find it difficult to know how responsible officers are going to work and what role they will play in revalidation. I do not get that from this Bill.”
She continued:
“I cannot tell from the Bill how it will work, which bothers me. I am worried about responsible officers”.——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 42-43, Q83.]
If PCT medical directors are also the responsible officers, it will give them too much power over individual doctors, and they will have the power both to discipline and to sack the doctors on their patch. PCT medical directors are already busy, and they have many priorities. In her oral evidence, Lady Justice Smith said:
“I am really unhappy about that for several reasons...I do not like the idea of a medical director, who already has a lot of jobs, having to take on responsibility for revalidation as well as all his other jobs. I think that that is too much”.
Her desire for making it a separate role arises partly out of her concern that
“the revalidation process should be clear and understood...it should be summative and a proper test, and...it should not just involve shuffling pieces of paper around and rubber-stamping them”.
The Medical Protection Society has made the same point.
The role of the responsible officer could cause serious conflicts of interest. Suppose that a local doctor prescribes an essential cancer drug for a patient, which puts strain on the PCT’s budget, and he suddenly finds himself at the wrong end of an inquiry by the local GMC affiliate medical director. How would the GP know that the inquiry was genuine rather than contrived? How would the GMC affiliate medical director know that his regulatory decisions were not being influenced by pressure from the PCT chief executive? Lady Justice Smith noted the reverse situation. She said:
“There is a real tension between, on the one hand, an employer’s desire to keep all of his employees in post, revalidated and fully qualified, and, on the other hand, the possible need to refuse to revalidate somebody, in which case their services might be lost entirely, diminished or put on hold, from which problems might arise. I am unhappy about that. I cannot tell how it will work, but it looks to me that it might be like that.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 43, Q83.]

Angela Browning: We discussed that matter when we took oral evidence and it is important to get the clause right. Within certain disciplines, particularly in hospitals, there are often shortages of doctors. Because of the need to meet targets and keep patient throughput, the medical director who undertakes revalidation is going to be in a difficult position. He must do his job as required by the primary care trust, or according to the Government’s requirements sent from on high, and, at the same time, he must be responsible for revalidation. One could see all sorts of tension arising in such a situation. I am talking narrowly about doctors in a narrow sense, but there are many different types. The Government need to get the measure right, so that the pressure I described does not end up on medical directors. Their role should be clearly defined and the problem I described, which was clearly identified in the oral evidence, should be resolved in the Bill.

Stephen O'Brien: I saw the Minister nodding when my hon. Friend talked about getting it right, so, in that sense, we are at one. My hon. Friend highlighted the fact that every system in the world and every law that we pass here deals with human motivation and is man-made—nothing comes down from on high. However professional, experienced, responsible or extraordinarily intelligent the people we are talking about are, we cannot escape the fact that people are influenced by motivational factors.
The only way to address my hon. Friend’s point is to take an extreme case—it is absolutely germane to what I am saying. We might find such an event inconceivable, but, tendentiously, we live under a regime of top-down targets rather than the bottom-up approach that we keep urging the Minister to adopt. Targets drive the performance criteria and measurements. However, anyone in any walk of life who is involved in management knows that what one measures is what one gets. If measures and targets are put in place, and if, as in so many cases, they have year-end performance bonuses and money attached, and if one is desperately hoping that by achieving those targets, one will have a sufficient bonus that means that one can at last put the new kitchen in place, one would have a motivation to aim for the targets. That is what targets are for. However, if that motivation runs counter to the shortage of doctors in hospitals, for instance, we end up with a tension. The latter situation might lead to a target being missed and a bonus not being paid. Whatever explanations may be given or whatever exceptional circumstances might be pleaded at the time that that is negotiated, on a human resources department basis, it is insufficiently clear in the Bill.
My hon. Friend pointed out this issue in her very timely intervention, and in reply I referred to an extreme circumstance, which I obviously do not believe would or should happen. None the less, in doing so I have rather put it on the record that it is not completely beyond the realms of possibility. That highlights the issue that we are trying to address here. I accept that the Minister is trying to push this issue forward, so that we get it right. However, it is only right that we understand the tension that we are up against.
It is probably as well to remind ourselves that Dr. Meldrum of the British Medical Association said:
“It comes back to the whole business of having confidence. We are aware of people—medical directors in trusts, or whoever—whose loyalties have been primarily to their trust. We are not saying that their loyalties should be to the profession, but they should be to the wider benefits of health care. It is about achieving that balance by a degree of separation of function and a degree of separation of loyalties from the employer, and having an effective and practical operation. That is quite difficult; I accept that.”—[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 67, Q149.]
Primary Care Trust medical directors are employees of PCTS, so their impartiality in the regulatory management of local doctors cannot be guaranteed; it is very much of a piece, this. The responsible officer should be completely independent of the local PCT. That way, he or she is more likely to command the trust of local doctors, which, in my view, is an absolutely essential element of making this process work well and ultimately making the scheme more successful. I hope that the Minister will take the opportunity to confirm whether the medical directors will be, or are likely to be, the responsible officers, and also whether they will be the GMC affiliates.
During his oral evidence session, the Minister, under questioning from my hon. Friend the Member for Guildford, said:
“We are not making a specific ruling as to who it should be, just as to what qualifications the person should have. We think that responsible officers must be senior doctors with a current GMC registration.”——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 100, Q242.]
I think that we would all sign up to that. He continued:
“There was much discussion on Tuesday as to whether it should be a medical director, and that would be perfectly appropriate. In fact, a lot of the good medical directors are, in practice, already doing this job on the ground. Yet we are not saying that it has to be a medical director.” ——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 100, Q242.]
So, I hope that the Minister will take this opportunity to clarify that his statement means that there will be true freedom at a local level to choose not to have the medical director as the responsible officer and that the PCTS will not be encouraged, or even coerced, either by policy or funding issues, to merge the two roles.
It is that funding issue that really needs to be thought through, so that there are no perverse incentives, or indeed target-driven issues, that then drive behaviour, both in terms of who should be the responsible officer and what conflicts they may feel they are facing, even accepting that the extreme example that I gave, by way of argument, is highly unlikely to happen in practice; I would like to believe, anyway, that it is unlikely to happen.
I was also concerned about another matter. The Minister responded to the point made earlier by Findlay Scott during the GMC’s oral evidence that
“adequate resources must be provided.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 53, Q107.]
In response, the Minister stated:
“We are making provision in the Bill, if necessary, for them to take on assistants and extra resources to help them do the job if they want somebody.”——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 100, Q243.]
The Minister refused to allocate extra money to this process, instead choosing to suggest that
“We are giving extra money to PCTs all the time.”——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 100, Q244.]
With respect, I did not think at the time that that was an adequate response and I hope that the Minister will take the chance now to flesh out what he thinks will actually be the case.
Not only will this measure impact on how PCTs will choose to interpret the responsible officer role, but it goes no way to addressing the concerns about training. I accept that the Minister gave me a positive response when I raised the issue of training before, so I hope that I can be optimistic about the way that he tackles the issue in this context.
I raised the issue of training when the Minister was giving his oral evidence. I should be grateful if he would tell the Committee, first, who will be funding that training; secondly, when he expects the
“expert advisory group we are developing”——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 100, Q245.]
to agree the “competences”; thirdly, when he expects negotiations with providers of training to begin, and finally, how much he expects those contracts to cost.
Lastly, during the GMC’s evidence, the Committee also touched on the issue of soft information sharing. I do not want us to get into all the jargon that surrounds data sharing, but I suspect that this matter will be debated by others at a later stage. I think that the Liberal Democrats have tabled an amendment to clause 112.
However, there are concerns that if the responsible officers, without the employee’s knowledge, share information that is unproven, in the sense that there has been no investigation, or damaging, in the sense that it might affect an employee’s reputation, that could be the basis of a claim that the employer had breached an implied term of trust and confidence in their contract. Those points often lead to the most contentious and litigious issues, so it is advisable that they should be avoided if possible. If we can design measures to avoid them at this stage, we will have done our job better.

Sandra Gidley: The establishment of responsible officers at local level is an attempt to have greater local resolution of problems, and we generally support that broad aim. However, I concur with many of the reservations highlighted by the hon. Member for Eddisbury. I do not want to repeat too much of what he said, but even as he was talking, more questions were being asked in my mind. For example, it is all very well having a responsible officer who might be a medical director or a director of PCT, but a portion of the work force might do local work or work across PCTs, and I am not entirely clear who will be the responsible officer in that case.
If a problem is highlighted in an area, will the responsible officer deal with it, or will an individual living in a certain area have to have an overall responsible officer. I ask that because I am aware that the responsible officers for some of the GPs in my constituency would be in the primary care trust, but a small number work a couple of sessions at the local hospital in specialisms where there is a demand. If there is a problem in the hospital, will they have to answer to the responsible officer in the hospital, as it is not clear what will happen in those cases or how those people will join up the thinking if there are concerns about an individual?
There is also a problem with responsible officers having powers to put recorded concerns on a doctor’s record. Those concerns need to be substantiated in some way to avoid personal vindictiveness—let us not pretend that it does not happen—and so that there is a right of challenge by the individual, because a doctor could almost be held to ransom by the threat of having something put on the record.
There can be disagreements about the way of practising, and I can think of a local case where there was a big disagreement between a consultant and a couple of other consultants concerning procedures that he was using. It was difficult to say who was right and who was wrong. One consultant was convinced that he was right and had good evidence to prove his practice was appropriate, and the other felt that the behaviour of consultant A was irresponsible. I do not want to go into too much detail on that, but in such cases it is not clear who provides the ultimate sanction. One of the problems in that case was closely associated with the medical director, so where is the right to go elsewhere if someone is unhappy?
With regard to training, it is highly likely that a responsible officer could recommend that an individual whose practice, although not dangerous, was thought to be of concern and was in need of certain training if a few alarm bells had been sounded. We all know what happened to training budgets last year. Within a primary care trust, would there be tension between the financial pressures? Would a responsible officer in a senior position feel that he had a duty to balance that in some way?

Anne Milton: I reiterate my interest in that my husband is a medical director and, arguably, a responsible officer—before their invention. The hon. Lady has highlighted the crux of the problem, which is the tension between competency—that is what the responsible officer will be looking at—financial pressures and the resources available. During the evidence session we did not hear from the Minister how he intends to resolve that. Does the hon. Lady agree that, until we can take the step of employing responsible officers, that does need to be resolved?

Sandra Gidley: The hon. Lady has hit the nail on the head, which is why I am posing some questions here and now. I am not sure how this will all be resolved in practice. Bearing in mind that where doctors go other professions are likely to follow—with different employment models—my overriding concern is the potential blurring between employment and regulation functions. I was quite surprised when I heard Lady Justice Smith say that responsible officers would have an interest in keeping their staff because my immediate concern was the exact opposite, in that if a member of staff was proving problematic, there could be a search-and-destroy attitude.
Let us look at the example of a whistleblower who highlights to their local Member of Parliament certain hospital practices with which they are not happy. The hospital would obviously not be happy with the fact that those practices were being highlighted and the medical director might be put under pressure to find some problem with the whistleblower that could be used to bring pressure to bear, such as a threat to their employment record. It is essential that there is a dividing line between those functions. It is easy to see how the role of the responsible officer could be abused. I would like to think that all responsible officers would resist such temptations, but I suggest that there is a finite chance that the pressure put on the responsible officer would mean that the laudable aim of local resolution would not be achieved whereas games playing could be achieved. Potential manipulation of health professionals in that way is a dangerous road to take.

Ben Bradshaw: It is worth reminding ourselves that the setting up of responsible officers to improve clinical governance at local level was another of Dame Janet’s main recommendations. Far from the examples given by the hon. Lady, of which we do need to be cognisant—I will come on to some of the safeguards in a moment—most of us will have come across examples in our constituencies, in either the primary care or acute sector, where certain practices have been allowed to continue for far too long and issues have not been addressed. We have come upon some such examples ourselves. That is exactly what the role of the responsible officer is intended to try to address.
I was grateful to the hon. Member for Eddisbury for reminding me of my words in the evidence-taking session. I do not intend to repeat them, but I do wish to reassure the hon. Gentleman that it is our intention that responsible officers will be medically qualified and a registered medical practitioner. We shall lay that down in regulation. Indeed, many of these issues will be resolved in regulation. I would also like to point out to him that the amendments would not achieve the objective that he seeks. Although they would restrict the role of a responsible officer to those who were clinically trained, it would still be possible for responsible officers’ duties to be undertaken by members of other professions or professionals who have allowed their registration to lapse, or indeed, people who have never been registered with the national regulator. Even if the hon. Gentleman wanted to press the amendments, they would not achieve the ends that he seeks.
On the potential conflict of interest if responsible officers are medical directors, we have made it clear that while we do not seek to be prescriptive, we think that a medical director would be perfectly appropriately for this role. Many of the best medical directors are already carrying out most of the duties that responsible officers would be expected to carry out, in that they already have an important role in clinical governance. It is important that all healthcare organisations have effective clinical governance to protect patients, and the role of responsible officer will strengthen that by putting some of these functions on a statutory footing. The responsible officer will be responsible for identifying and managing cases in their organisation where there are concerns about a doctor’s performance. The management of those cases would include investigating the circumstances, instigating remediation and, where appropriate, referring cases to the GMC for further action. To respond to questions asked by hon. Members earlier, responsible officers will not take the action or refuse the revalidation themselves. We believe that the role is entirely consistent with any good health organisation’s role in protecting patients.
The hon. Member for Eddisbury made a plea for the system to be bottom-up rather than top-down, and I entirely agree with him. I refer him to comments made by Sir Graham Catto, who I quote in preference to Hamish Meldrum of the BMA. He said:
“From our perspective, the concept of the responsible officer helps us to bridge what Liam Donaldson described as the “regulatory gap” between what happens locally and what happens centrally. We believe that quite a number of cases that come to us might be much better dealt with at local level before necessarily being escalated up to us.”
He went on to say:
“It would be very helpful, from our perspective, to have people working in the local areas who understood the GMC processes, knew when it would be sensible to refer a doctor to us if they were concerned and could link more effectively with our own staff.”
Findlay Scott, his colleague from the GMC, went on a little later to say:
“We see the appointment of responsible officers as a further strengthening of local governance and as a reinforcement of local responsibilities.”
He went on:
“There is substantial evidence from our procedures that early and effective action could have saved doctors’ careers,”—
that goes back to what I was saying earlier about nipping a problem in the bud, so that it does not come to the situation where a more drastic reaction is needed—
“if problems had been identified sufficiently early and not allowed to drift. Clinical governance has already made a substantial contribution to that.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 52-53, Q105-07.]
In terms of how the responsible officers would fit in with the GMC and its affiliates at national level, they would have statutory responsibilities to ensure that doctors in their organisation are fit to practise and that the right processes are in place to protect patients. The GMC would still be the national regulator for all doctors in the UK. As I have said, responsible officers would not decide whether a doctor was re-licensed. They would make recommendations to the GMC, but the GMC would continue to be the regulator in that regard and responsible officers would be required to liaise with the GMC on individual fitness to practise cases, where responsible officers judged that national sanctions may be required.
As for the safeguards, responsible officers will be subject to exactly the same disciplinary procedures as other doctors. Complaints will be made either through the NHS complaints procedure or to the GMC. We will provide detailed guidance for responsible officers to ensure that they document their concerns only when appropriate.

Anne Milton: I do not doubt that the theory is good, nipping poor practice in the bud, but does the Minister envisage it being a full-time post for the average PCC? Will it be one full-time post or two? It would be useful to have some indication as to what he thinks will happen in practice.

Ben Bradshaw: My current thinking is that it would not require a full-time post. However, an existing medical director, part of whose job is to carry out such functions, might need to employ some support. The role would need to be devised locally. I shall say in a moment why we believe that there will be a need for extra resources and extra support. It will be a requirement under the Bill. Indeed, we are providing for that support through the comprehensive spending review to be announced in the autumn.
We accept that there will be an additional work load, but we expect that those burdens will be containable, the costs being offset by the benefits of improved quality and patient safety, and by obviating the need to escalate the sorts of cases to which I referred earlier and to which the GMC drew attention. Under the Bill, we require organisations to provide the necessary resources for responsible officers to carry out their role and to ensure that organisations that provide responsible officer functions to others are not disadvantaged. The Bill makes provision for responsible officer costs to be provided by those receiving the service.
Training will be developed, through the expert advisory group that we are developing, on deciding the necessary competences for responsible officers. Once we have agreed those competences, we will negotiate with the pension providers to develop and deliver specific training on the role of responsible officers. The sub-group doing that work will include medical directors and GMC, BMA and NHS management, including HR specialists.
I hope that I have reassured hon. Members on the role of responsible officers and how they fit into the general system, and on the support that will be available to them and to local trusts in order for them to do their jobs properly. It is so long ago now that I have forgotten whether we are debating one or more amendments, but however many there may be, I hope that the hon. Member for Eddisbury will not press them.

Stephen O'Brien: I listened carefully to the Minister. To put it in context, the Minister rightly pointed out that this provision comes on the back of a recommendation from the then Dame Janet Smith, now Lady Justice Smith. In her evidence she said that she could not see from the Bill how it would work, and given the way that the Bill is drafted, one can understand that. The Minister sought in his response to give us some finer grained detail.
We heard about pressure, and not only from my hon. Friend the Member for Tiverton and Honiton, meaning that in certain settings it might be too much of a problem to get rid of somebody. We then heard from the hon. Member for Romsey, who if I interpreted her remarks correctly sought to show why there might be too great a risk of victimisation. A spectrum of risk is obviously being contemplated, and although I welcome what the Minister had to say about training, we are still left with those conflicts and potential misunderstandings.
The Minister said that he expects to see a lot of these matters dealt with in regulation. Given the genuine concern expressed in our debate, I rather hope that the Committee will have the opportunity to see those regulations, at least in draft form, on Report. If that is not feasible, I hope that they will be ready for those who will be considering the Bill in another place. I am sure that that will be an important way of setting the matter in context.
On the same basis as I have done previously, to ensure that the point does not get lost, I would like to press the amendment. It is for no other reason as, looking at the numbers in the Committee, I recognise that I may be adopting a forlorn position. None the less, by pressing the matter, I hope to keep the Minister’s feet to the fire on that point. I hope, too, that we may see the regulations, at least in draft, brought forward when we are considering the relevant measures in the Bill. It is such an important area to get right, not least because we are putting such responsibility on the responsible officer. We must ensure that they are in the best position to carry out the functions successfully. On that basis, I seek the opportunity to divide.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 10.

Question accordingly negatived.

Stephen O'Brien: I beg to move amendment No. 55, in clause 110, page 57, line 26, at end insert—
‘(5A) In conferring powers under subsection (5), the designated body must have regard to—
(a) patient safety,
(b) the continuing professional development of medical healthcare professionals, and
(c) the continuing professional development of healthcare managers.’.
I was forlorn, indeed bereft, at the results. [Interruption.] I take the sympathetic moans from the Opposite Benches with the sincerity with which they were offered.
The amendment seeks to include in the responsible officer’s role responsibilities for patient safety and the continuing professional development of doctors and health care managers, insofar as they impact on doctors’ performance. I hope that the Minister will find that of interest, given the training commitment that he has so assiduously sought to lay out.
Responsible officers provide the opportunity for a dedicated individual to pick up the early warning signs in, for example, prescribing practice, and to alert for an improvement in performance. In an open system of benchmarking, something on which I am particularly keen, that could be an effective asset to the local and national health economy, and to the professionalism and morale of local doctors.
On the other hand, as we have discussed, the responsible officer could be little more than a revalidating rubber-stamper and a “copper’s nark”. That would have the reverse effect on the profession and, ultimately, would fail significantly to benefit patients and the public. I hope that the Minister will see the point that, by outlining what he expects the day-to-day role of the responsible officer to be, he is thereby able to include experience of and responsibility for continuing professional development in the competency framework currently being discussed by his Department, of which I am aware. The amendment would be useful to help to underpin many of the points that I acknowledge that he has set forward.

Ben Bradshaw: As we discussed earlier in the Committee, patient safety and the quality of care are the core business of every health care organisation, and the new regime set out in part 1, particularly the obligation to register with a national regulator, is intended to enforce that fundamental responsibility. Health care organisations will need to comply with statutory safety and quality requirements, which will include ensuring that all staff, both clinical and managerial, are appropriately skilled and trained to carry out their duties. Patient safety and the professional development of doctors lie at the heart of the responsible officer’s role, both in relation to the duties under this clause and those proposed under clause 111.
The amendment would require a designated body to have regard to patient safety and
“the continuing professional development of medical healthcare professionals, and...healthcare managers.”
when giving a responsible officer additional duties. That would be in addition to having regard to the responsible officer’s statutory responsibilities.
If the hon. Members intended that responsible officers should consider the impact on patient safety and on continuing professional development when carrying out their primary duties, the amendment would not achieve that. It places a responsibility on the organisation to take those factors into account only when they decide to assign additional duties.
We do not want other duties that might be given to a responsible officer to interfere with the proper functioning of statutory responsibilities. Beyond that, I do not see any advantage to patients or to health care staff in unduly constraining the freedom of health care organisations to combine the responsible officer functions with other appropriate duties—for example, clinical duties or a broader clinical leadership role. The clause would preserve that freedom and I therefore hope that the hon. Gentleman will agree to withdraw the amendment.

Stephen O'Brien: I am sorry to hear that the Minister has been so advised, but I am sure that the advice would not have been given unless it was meant. If it is appropriate, we can return to the matter on another occasion and on that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Stephen O'Brien: Briefly, I rise to probe the extent of the Secretary of State’s power with regard to the clause. I note from the memorandum on delegated legislation that under the clause, powers are conferred on the Secretary of State in relation to England, Scotland and Wales. The powers are
“to make regulations to designate bodies which shall be required to nominate or appoint persons, to be known as responsible officers, with responsibilities in relation to”
professional regulation—that is on page 51 of the memorandum. Can the Minister explain why the powers are not devolved? Will responsibilities imposed upon primary care trusts in Scotland, and local health boards in Wales through this legislation be recognised in funding through the Barnett formula?

Ben Bradshaw: I am afraid I will have to write to the hon. Gentleman with clarification on that point.

Question put and agreed to.

Clause 110 ordered to stand part of the Bill.

Clause 111 ordered to stand part of the Bill.

Clause 112

Co-operation between prescribed bodies

Sandra Gidley: I beg to move amendment No. 267, in clause 112, page 60, line 25, leave out ‘may show’ and insert ‘shows’.
The clause has the generally laudable aim of ensuring that there is a mechanism for sharing information about health workers. As a general principle, that is to be welcomed. There have been occasions where the system has failed in the past because it has not joined up and earlier, I cited an example of a nurse in a nursing home who was able to practise for some time before her regulatory body caught up with her.
There is a concern about the current drafting. The aim of the amendment is to ensure that the sharing of any information that relates to the conduct or performance of a health worker could happen only if it actually shows that the worker is likely to constitute a threat to the health and safety of patients. The current wording in the Bill says “may”, and that seems to encompass a range of levels of proof. It would only potentially show that a worker may be a threat, and it is not clear how robust that evidence has to be.
The regulations will require NHS trusts and other bodies to provide and share information about health care workers in circumstances where a person may constitute a threat to the health and safety of patients. The BMA identified a potential problem with the clause from an employment law perspective. Clause 112(1)(a) refers to information that
“may show whether a worker is likely to constitute a threat to the health and safety of patients.”
Legal advice received by the BMA shows that if an employer were to pass on an unproven or damaging piece of information without the employee’s knowledge, it could be the basis of a claim that the employer had breached an implied term of trust and confidence in his or her employment contract. The use of unproven information does not indicate what level of investigation there has to have been. Obviously any comments that raise concerns are potentially damaging to an employee's reputation, so the matter would need to be carefully looked into. There is a case for saying that information should be shared only where the employer can demonstrate cause. In effect, that means that there would be a full and proper investigation and that the employee would be informed of the allegations.
It would be helpful to know how and when those powers will be used. Can the Minister clarify the procedures for the sharing of such information, including the need to inform the subject of the investigation at the earliest possible stage about the allegations that are being investigated? What assurances can the Minister give that the information shared would be kept in strict confidence, and to whom will that information be restricted?
Page 61, line 4 defines a “designated body”. Will the Minister clarify what other bodies he intends to prescribe for the purpose of that measure? It is right to say that protecting patients is vital, but the human rights of the health professional also need to be taken into account. At this stage, can the Minister outline the content of the secondary legislation and guidance?
I have a couple of further questions. What are the appropriate circumstances in which unproven information should be shared? If the intention is that the powers will be used only in cases where there is evidence of a significant risk to patient safety and where appropriate investigations are under way, can the Minister give examples of cases where information sharing would be an integral part of the investigation? What guidance will PCTs be given on considering all relevant factors, including assessing the degree of urgency and potential threats to patient safety, and examining the contribution that information from one organisation could make to the investigation before making the decision to share the information? Will the Minister clarify the circumstances in which it may be necessary to share information that is unproven at the time the information is shared? What onus will be on the organisation receiving the information to use the same confidentiality safeguards that it would if it had received the allegation directly from a member of the public?
There is general happiness about the overall intent of the Bill, but the use of the word “may” has given rise to some significant concerns, on which I seek the Minister's reassurance.

Ben Bradshaw: The amendment would prevent organisations from sharing information—even where proven—that on its own may not be enough to demonstrate a threat to patient safety. However, when such information is put together with other information a pattern of behaviour may be revealed that could put patients at risk. For example, the settlement of a clinical negligence claim does not in itself show that the worker was a threat to patient safety, but repeated claims may show that there is likely to be a threat to patients.
A common conclusion of recent inquiries, including the Shipman, Ayling and Kerr/Haslam inquiries, was that health care organisations failed, both singly and collectively, to join up information that was available to them. We are concerned that the hon. Lady’s amendment would limit their ability to do so. I will come on to the safeguards that she sought in a moment.
I absolutely understand and sympathise with the need to protect health care workers from unfounded allegations and we will therefore ensure that any regulations made under the clause are accompanied by robust guidance, which sets out the necessary safeguards regarding the way in which the shared information is stored and used in the receiving organisation. The basic principles should be that any uncorroborated information be held in strict confidence by the receiving organisation, and that health care workers be told, at the earliest possible stage, of the accusations against them and of the proposed way in which they will be investigated.
In response to the hon. Lady’s specific questions, information on unproven allegations will be shared only under strict conditions of confidentiality and on a need to know basis. There is no question of taking disciplinary action against any professional without a full investigation, in which the truth of such allegations can be rigorously tested through a fair process.

Sandra Gidley: Information could be passed on to another body and later not be proven. It is not clear what means there is of withdrawing such information so that a slur does not unnecessarily stay on a health professional’s record.

Ben Bradshaw: That is exactly the sort of thing we would need to make plain in the secondary legislation. Soft information should be kept subject to strict controls and confidentiality so as not to harm the reputation of health professionals. Where on the basis of the information available a health care organisation decides that there is a need to investigate further, the professional concerned must be told of the allegation and given an opportunity to give his or her side of the story.
The procedures will be set out, as I already said, in regulations. Guidance will be based on the advice of an expert group that will include the BMA, and that legislation will also be subject to full public consultation. We expect to carry that out later in the year. It is our intention that the guidance include the need to inform the subject of the investigation at the earliest possible stage.
Finally, the hon. Lady sought an example of where unproven information may be shared. One example is where a doctor is employed by two or more organisations and an investigation into a serious allegation has been initiated by one of them. In deciding whether to share that information with a second organisation, the organisation will need to consider the central issues of the nature and strength of the allegation, the degree of urgency and the vulnerability of those to be protected. I hope that on the basis of those reassurances the hon. Lady will feel able to withdraw her amendment.

Sandra Gidley: I thank the Minister. There is always a problem when dealing with legislation whose detail is to come after, and when there are relatively few opportunities for parliamentarians to change the fine detail of the final product. I am happy to withdraw the amendment at this stage but I will reflect further and look closely at the Minister’s words to check that all my concerns have been allayed. I am not convinced that they have been and it is possible that we may wish to return to the point on Third Reading.
I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 112 ordered to stand part of the Bill.

Clause 113 ordered to stand part of the Bill.

Clause 114

Regulation of social care workers

Stephen O'Brien: I beg to move amendment No. 56, in clause 114, page 62, line 18, leave out subsection (4).
This is a probing amendment to ascertain the Government’s plans under subsection (4) for the regulation of social care workers who are not currently social care workers. The simple question is, what groups does the Minister have in mind? The Minister confirmed during the debate on clause 5 that it is not the Government’s intention
“that the domestic or private arrangements that they outlined should fall under the requirement for regulation”.——[Official Report, Health and Social Care Public Bill Committee, 15 January 2008; c. 226.]
Regulations under this provision are made by statutory instrument under the affirmative procedure, in recognition of the fact that in granting the Secretary of State the power to repeal or amend any provision other than section 55 of the Care Standards Act 2000, this is a Henry VIII clause—our old friend whom we discussed earlier. I shall refrain from reading out the remarkably humorous contribution I made at the time.
Our memorandum of information notes:
“It has hitherto not proved possible to make amendments as promptly as would be desirable in that changes require an appropriate legislative vehicle and sufficient Parliamentary time.”
I felt quite irritated and irked by that. It is not a strong argument. For a Government it is a very weak argument, because not only is control of both elements wholly within their power, there has not been one parliamentary year since Labour came to office when an Act meddling with the NHS or social care sector has not gone through the House, any number of which might have contained the proposed provision. Committee members need only look at part 5 of the Bill for examples.
It remains a moot question, therefore, whether the Committee should vote away even more of Parliament’s democratic role solely because either the Government are not on top of their policy making in advance of their proposed legislative programme or they have some problem with their parliamentary timetabling, such that we need this extraordinary catch-all definition of social care workers who are not currently social care workers. I look forward to the Minister’s response.

Angela Browning: I support the amendment. It brings us back to something about which the Minister has given us verbal reassurance throughout the course of the Bill, but subsection (4)(c) seems to catch all the people we have talked about. I am particularly concerned about the flexibility, which I have already said I support, of direct payments. Many people are employed directly by people who need a package of social care paid for through direct payments from public funds. We have just started to get a breakthrough in that flexible arrangement for people who are befrienders, such as those helping people with mental health problems or with autistic spectrum disorders, who need a package of care that is not the sort we have historically identified with physical disability or old age, but which makes a huge difference to their lives whereby their needs are recognised and they can at last start to take their place in society and do the sort of normal things that the rest of us enjoy but from which they are precluded.
Let us take as an example people who need a care package so that an age-appropriate or gender-appropriate person can accompany them socially—perhaps to go to the pub with them once a week. That may sound rather minuscule and trivial, but it makes a difference and I cannot see how such befrienders and people officially employed with public money will not fall foul of subsection (4)(c). They are just the sort of people who will be caught by that catch-all. Once they are subject to a lot of regulation they will be discouraged from doing those jobs and making themselves available one or two evenings a week. This is important, so I must ask the Minister to address what is on the face of the Bill, as it seems to fly in the face of some of his earlier reassurances.

Ben Bradshaw: The clause will only enable regulation of activities carried on by people who are not social care workers within section 55 of the Care Standards Act 2000 if the activities are carried on in connection with the activities of social care workers. Provision in subsection (4)(b) and (c) measures the equivalent provision that we have already discussed under schedule 3 in relation to the Health Act 1999, which sets out what regulation in relation to a health care professional may include.
In answer to the hon. Member’s question, it may include other groups who will need the flexibility to register in future. We have already announced that the first new group to be registered will be staff working in domiciliary care. The Government have also accepted GSCC advice on further groups, which include residential care workers. Those two groups cover staff in Commission for Social Care Inspection registered children’s care homes, residential family centres, care homes for older people, care homes for adults, domiciliary care agencies that provide personal care in people’s homes, fostering agencies, voluntary adoption agencies and so on. They are not the sort of individual contractual arrangements we discussed earlier and which the hon. Lady has just raised again.
That is why we are seeking the flexibility that the clause would give us. The difficulty we have with the hon. Member for Eddisbury’s amendment—notwithstanding his concerns, which I share, that we would not want the flexibility to be limitless—is that it would create uncertainty for the groups I have just referred to and may mean that those people or activities would not be brought within the regulatory framework or their regulation modified without primary legislation. I do not think that would be a sensible restriction so I hope he will feel able to withdraw his amendment.

Stephen O'Brien: I have listened carefully. Although it has unquestionably been helpful for the Minister to say that he has in mind, for instance, staff working in domiciliary care, residential care workers and a number of others, it is either appropriate to define them, which would be possible, or, given that so much is in regulations, it could be done by regulation. What I do not like is that the provision is so general and unspecific that it could possibly capture more.
This is not a vote against the Government as a matter of principle but a vote against on the basis that we have made a sensible point that has not yet been fully addressed. I encourage the Minister to think afresh with his officials as they look at the next stages of the Bill. On a feet-to-the-fire basis, I seek to divide the Committee.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 10.

Question accordingly negatived.

Clause 114 ordered to stand part of the Bill.

Schedule 9 agreed to.

Clause 115 ordered to stand part of the Bill.

Clause 116

Education and training of approved mental health professionals

Question proposed, That the clause stand part of the Bill.

Stephen O'Brien: I will be extraordinarily brief as this is my final flourish on part 2 as we romp through it and into part 3. The clause is about the education and training of approved mental health professionals. I shall do no more than say that the emphasis that we put on training is equal to that on all other aspects of the Bill. I think that that reinforces the Minister’s approach. We have not lost sight of the fact that the Bill is intended to be not just regulatory, but positive in giving support to those concerned.

Question put and agreed to.

Clause 116 ordered to stand part of the Bill.

Clause 117 ordered to stand part of the Bill.

Schedule 10 agreed to.

Clause 118 ordered to stand part of the Bill.

Clause 119

Public health protection

Anne Milton: I beg to move amendment No. 247, in clause 119, page 68, line 31, at end insert—
‘(8) All orders made in accordance with subsection (1) above shall be reported to Parliament.’.
Although it feels late in the day, may I say what a pleasure it is to serve on this Committee under your chairmanship, Mr. Conway? I have not had the opportunity to say that before.
I am hoping that we will have the opportunity to have a stand part debate. There has been a bit of a leap in subject matter. Part 3 of the Bill will update the Public Health (Control of Diseases) Act 1984 and has been widely welcomed. This part has not had a huge amount of publicity, but concerns have been raised about some of the powers that it gives. However, I re-emphasise that it has been largely welcomed.
Public health measures have been used since ancient times. The Chinese had a technique that was very similar to vaccination to prevent the spread of smallpox. Many of us are familiar with the public health measures in Roman times. It is as well that from time to time Governments update public health laws.
The amendment is essentially very simple. It reflects concerns that have been raised, not least by the National AIDS Trust, the Terrence Higgins Trust and a couple of other bodies. They are not against the powers and feel that it is important that they are substantial, but it could be said that the powers are draconian, albeit necessary, unfortunately. The National AIDS Trust was disappointed that those who had submitted views to the consultation process were told of the Government’s conclusions and the consequential legislative provisions only the day after the Bill was presented to Parliament.
There is some concern about the extension of the powers. In particular, a justice of the peace could previously make an order for a medical examination and move someone with a notifiable disease to a hospital or detention hospital. Under the Bill, a justice of the peace will additionally be able to order quarantine, disinfection or decontamination, and the wearing of protective clothing, and to require an individual to provide information and answer questions, require the monitoring of an individual’s health, require an individual to attend training or advice sessions on risk reduction, restrict where an individual goes or with whom they have contact, and require that they abstain from working or training.
I am sure the Minister would agree that while all those powers might be necessary, they are draconian. Many of the organisations that I mentioned, especially the Terrence Higgins Trust, have welcomed the Government response to the consultation. It is clear that the Government have been measured. The amendment would simply ensure that there was a safeguard in Parliament by giving Parliament an opportunity to look at orders that are made. A great deal of publicity has been given to the detention of people in recent years, albeit in relation to matters other than public health. Our society will be significantly interested in monitoring the situation.

Greg Mulholland: We think that this is a sensible amendment, but is it really supposed to introduce subsection (8)? There is no mention of deletion, so should it not refer to subsection (9), or possibly (8A)? The key point is clearly that when there is a risk of significant harm to human health, it should be reported to Parliament. We broadly support the aim of the proposal.

Ben Bradshaw: I completely accept that the restrictions or requirements that justices of the peace can place on individuals could impact on their human rights, so it is very important that we are debating this and I am grateful to the hon. Member for Guildford for raising the issue. We agree that the powers must be used responsibly, which is why we have put them in the hands of an independent JP and included the requirement for the Secretary of State to make regulations about the evidence that should be presented to the JP before he or she makes a decision.
However, the amendment would require all orders made under new section 45G of the 1984 Act to be reported to Parliament and we think that that would be a little excessive. For example, we do not require social workers to report to Parliament each time they detain a person with a mental illness, or the police to report to Parliament each time they arrest a potential criminal. We are very well aware of the concerns of the organisations that the hon. Lady mentioned, including the National AIDS Trust, and my officials have been working very closely with them in developing the JP order regulations, which we will debate at a later stage. Given that, and the existing safeguards in legislation, we do not think there is a need for Parliament to be informed of every use of the provision, so I ask her to withdraw her amendment.

Anne Milton: I thank the Minister for his response. I can see from his face that he genuinely shares our concerns about this. None the less, it would be a pity if these figures were available to Members only if they tabled parliamentary questions. Perhaps the Minister would consider putting those figures in the Library or making them available to the Select Committee. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Greg Mulholland: I beg to move amendment No. 138, in clause 119, page 68, line 33, leave out ‘justice of the peace’ and insert ‘local authority’.

Derek Conway: With this it will be convenient to discuss the following amendments: No. 139, in clause 119, page 68, line 34, leave out ‘justice’ and insert ‘local authority’.
No. 140, in clause 119, page 69, line 1, leave out ‘justice of the peace’ and insert ‘local authority’.
No. 141, in clause 119, page 69, line 2, leave out ‘justice’ and insert ‘local authority’.
No. 142, in clause 119, page 69, line 28, leave out ‘justice of the peace’ and insert ‘local authority’.
No. 143, in clause 119, page 69, line 29, leave out ‘justice’ and insert ‘local authority’.
No. 144, in clause 119, page 69, line 38, leave out ‘justice of the peace’ and insert ‘local authority’.
No. 145, in clause 119, page 69, line 39, leave out ‘justice’ and insert ‘local authority’.
No. 146, in clause 119, page 70, line 9, leave out ‘justice of the peace’ and insert ‘local authority’.
No. 147, in clause 119, page 70, line 10, leave out ‘justice’ and insert ‘local authority’.
No. 148, in clause 119, page 70, line 43, leave out ‘justice of the peace’ and insert ‘local authority’.
No. 149, in clause 119, page 70, line 44, leave out ‘justice’ and insert ‘local authority’.

Greg Mulholland: Amendments Nos. 138 to 149—I do not understand why the group is listed as “138+139 to 149”, but I accept that there is a lot I need to learn about parliamentary procedure—are really about a point of principle, but, more importantly, they attempt to question the practical changes in this part of the Bill. The Minister will be well aware that there are serious concerns about the implication of those changes.
On the point of principle, we believe that the power to impose health control measures in relation to objects and premises to prevent the spread of infection or contamination, which we all agree is important, is better in the hands of local authorities than of justices of the peace. The amendments would make that change. The intention is to remove the requirement that the Bill would impose on local authorities to seek a legal ruling before taking measures in relation to things or premises to prevent the spread of infection or contamination.
As the Minister will know, we have not tabled amendments to proposed new section 45G, which addresses the power to order health measures in relation to persons. That is quite deliberate so that a higher standard of proof would be necessary in those cases before health measures could be ordered. We believe that councils, as the bodies in control of local areas and the only bodies that can put measures into practice quickly, need the power to protect the people whom they serve from contamination and infection.
The Minister will be well aware that the Local Government Association and individual councillors have broadly welcomed the changes to public health legislation. The LGA believes that they are
“mainly sensible and will consolidate existing legislation into a framework that will meet new and emerging challenges.”

Stephen O'Brien: The hon. Gentleman might recall that during the oral evidence sessions, the Minister was not persuaded that there would be a requirement for repeated applications to a justice of the peace. I suggested—not that I got an answer, because it was more a rather loud aside—that one problem in the case that I had mentioned was that it involved a series of licensed premises. I wondered whether that might have made a difference to whether there would be separate or combined applications by the local council, notwithstanding the change in the role and responsibility of magistrates in relation to licensed premises. I wonder whether the Minister has had a chance to reflect on that and to establish whether there will be a problem of licensed premises giving rise to a serial need for applications, rather than a collective application.

Greg Mulholland: I thank the hon. Gentleman for that helpful intervention, which has saved me from mentioning that part of the evidence sessions. As far as I am concerned, the question remains up in the air. I hope that the Minister has had a chance to reflect on it and that he will be able to respond.
As the Minister knows, the key issue is whether he challenges the view of local authorities that the provision will be an additional layer of bureaucracy and an extra step in the process that could lead to delays in the response to incidences of infection and contamination. That is clearly a valid concern. On top of the hon. Gentleman’s question to the Minister about repeated applications, I wish to ask him, first, why he believes the change will speed up the process and improve its effectiveness. If it will not, it would clearly be foolish to introduce it. Secondly, what are the costs involved? They cannot be nothing, and I would be surprised if they were negligible. Has a cost assessment of the changes been carried out, as well an assessment of their effectiveness?

Ben Bradshaw: As hon. Members will remember, the Local Government Association told us, during its evidence session, that requiring a local authority to seek an order from a justice of the peace in order to carry out measures in relation to infected or contaminated things or premises would cause a delay. However, that was wrong, because it suggests that the local authorities had those powers all along, and that the new safeguard provided by the justices of the peace would be a hindrance to an otherwise smoothly-running system. However, that is not the case. The Public Health (Control of Disease) Act 1984 does not extend to any premises or things that are contaminated, which is why we are taking these powers. The powers in relation to infected premises and things are patchy, which again is one of the reasons we need to amend the 1984 Act.
In many cases, local authorities have had to rely on other legislation, such as food safety, environmental protection or health and safety legislation, to deal with infected or contaminated premises and articles. Where there have been gaps, local authorities have had to rely on voluntary co-operation. The provisions in proposed new sections 45H and 45L will fill those gaps. However, we think that significant interference with, or even loss of a person’s home or property, deserves a degree of judicial oversight. Hon. Members will be interested to know that the responses to the consultation supported that view by 10:1.
The powers in new section 45 are to be used only when necessary. A justice of the peace is unlikely to reach a decision that an order is necessary, if the local authority has not already exhausted other reasonable methods. In addition, a JP is unlikely to deem an order necessary if it is sought as an alternative to using other more appropriate legislation, such as that on health and safety.
On the timing issue, hon. Members will remember that the LGA implied that the 1984 amendments would force local authorities, at great expense, to apply individually for 47 separate orders. That is not correct. New section 45J makes it clear that the local authority could seek a single group order for all premises relating to a single contamination incident. I remind hon. Members also of the evidence given by Pat Troop, from the Health Protection Agency, who was very relaxed about the speed of process involving a JP, in contrast to the speed of process involving local authorities.
In response to the point raised by the hon. Member for Leeds, North-West about powers relating to things and premises, rather than to people, we agree that direct interference in the rights and freedoms of people is of a different order and requires the oversight of a JP. However, interference with a private dwelling or other premises, or with the enjoyment or possession of private properties, is also quite serious and deserves such oversight. Given that, I hope that he will withdraw his amendment.

Greg Mulholland: I am glad that the Minister agrees with me on one point; it might be the first time that he has in this Committee stage.
As I made clear, the LGA, local authorities and—I am sure—the Committee, agree that the tidying-up, to which the Minister alluded, is very important for the process. However, he has a little more work to do to convince, certainly, the LGA and local authority leaders that this is not an additional step in the process and that there is no possibility of delay. I urge him to engage in further dialogue to allay those concerns. I did not get an answer to the question about costs, and I ask him to bear them in mind and to respond at some stage with an idea of how much the changes will cost. That is an important point. However, we have teased out the main points, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ben Bradshaw: I beg to move Government amendment No. 242, in clause 119, page 76, leave out line 1 and insert—

‘General
45RA Application to territorial sea
The provisions of this Part have effect in relation to the territorial sea adjacent to England or Wales.’.
Clause 119 amends and updates the existing provisions of the Public Health (Control of Disease) Act 1984. Part 2 of the Act includes provisions ensuring that a local authority or port health authority has jurisdiction over vessels on waters in or near the port and that regulations can be made in relation to coastal waters up to the old boundary of the territorial sea for public health protection measures.

Stephen O'Brien: I am grateful to have the opportunity to debate the amendment and beg the indulgence of the Committee. I am afraid that the only thing as a lawyer that I, apparently, excel at is international public law, especially the law of the sea. This amendment does not, as it happens, relate to my speciality, which is the configuration and operation of the law of the sea as applied to archipelagic states, which, as one can imagine, is both geographically and legally extraordinarily fraught when one considers states such as the Philippines or Indonesia.
Here I see, for the first time applied to the UKas a matter of law—although I hope the Minister will be able to prove me wrong and show how far behind I have become in my legal understanding of these areas—the question of territorial sea, as applied internationally and in recognised terms through the treaty, under the auspices of the United Nations law of the sea. Because of devolution, we have to look carefully at how the measure applies to England and Wales. The amendment says:
“the territorial sea adjacent to England and Wales.”
It certainly begs the question of such places as the Isle of Man, which sits between measurements relating to both Ireland as well as the Province of the United Kingdom, namely, Northern Ireland.
By one measurement, the Isle of Man is closer to the landfall of Scotland. One only has to think of the Mull of Kintyre to recognise that that poses a challenge, given that Scotland is not mentioned in the clause. I am not seeking to be picky, but I do think that this is a serious issue. Devolution often poses many questions where the whole of the law internationally has been framed upon the basis that the United Kingdom is a nation for the purposes of application of treaty law.
We domesticate that law and make it enforceable. If we then reflect on the devolutionary settlement that has taken place over the past decade, that poses a question. For example, the boundary between England and Scotland is in the Solway Firth. Is that a direct division and an equal length of measurement between the coast of north-west Cumbria and the south-eastern coast of Dumfriesshire? What does one do, for instance, with Lindisfarne, assuming that that is an English territory? 
Although it is important to recognise that this can get bogged down in a geography lesson, and as is patently clear to all, I probably left out the most convenient example because I have reached the limit of my own geography off the top of my head, the amendment seems to beg questions about whether the measure has been imported without genuinely recognising the complexity of the international treaties that give rise to the law of the sea and therefore the definition of territorial waters. Interestingly, “territorial sea” as a term has not normally been recognised. Normally it is territorial waters that is applied to the British Isles, remembering that that includes the international state and neighbour of Ireland, across which we have our only land border. It also relates to the fact that we have a continental shelf measurement. That is different from the normal laws of the sea as would apply, say, to the Philippines, if one were measuring the territorial waters that extended to the normal 200-mile limit in an archipelagic state. Therefore, we have some serious issues to contend with here. I am sorry to take up the Committee’s time, but having seen the amendment, I could not resist ensuring that that matter has been thought through.

Anne Milton: I rise simply because my hon. Friend’s contribution cannot pass without remark. It was absolutely remarkable and we are all glazed over in awe. I have read the amendment many times. I know that the public health issues in relation to ports are enormously complicated and, for the first time since the Committee’s proceedings started, I feel somewhat sorry for the Minister in having to respond.

Ben Bradshaw: Let me assure the Committee that I am not at all glazed over, but leapt to attention when I heard the hon. Gentleman’s comments, not least because, as a former fisheries Minister, I grappled with the complexities of devolution in relation to our coastal waters when dealing with the Marine Bill. I am well aware of the issues and hope to reassure him by saying that Scotland is working to develop its ship regulations so that they mirror the English provisions and Northern Ireland will develop its own regulations once it has a public health Bill.

Amendment agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

Anne Milton: I am conscious that I must not keep the Committee unnecessarily but think I that, in the light of the amendments that we have discussed, it is important to go through a few of the issues. I am not one to quote large sections of text, but I think it is worth drawing attention to a recent article in the Medical Law Review which described a Swedish case where the enforcement of public health legislation was judged to conflict with the European convention on human rights. In the conclusion, the author wrote:
“Law has the potential to be a very useful tool for the attainment of public health. Bad law, however, can serve to create obstacles to public health. Public health consultants in England and Wales have been cautious in using detention powers, even in cases of serious risk of disease spread by a non-compliant patient, because of lack of clarity of the status of these powers in relation to human rights. Enhorn illustrates that similar concerns exist in relation to legislation elsewhere in Europe. There have been many calls for reform of public health legislation in the United Kingdom by academic commentators and public health consultants...Public health law has undergone a process of reform in other jurisdictions that had adopted their public health laws from English law, following the SARS scare in 2003. Any doubt as to the implications of the Human Rights Act 1998 for the Public Health Act 1984 must now have been settled by the decision...Once again we can only call upon the government to make reform of public health an issue of the highest priority and not to wait for the threat of a new or re-emerging disease in order to pass with haste emergency legislation.”
This part of the Bill serves to do exactly that. The Minister mentioned human rights issues, which have come up from time to time during the Committee’s discussions, and the amendment relates to that. It is important to be mindful of that and of the continuing public concern about the use of powers by officials to detain people.
I was pleased to see that there was unanimous agreement in the responses to the Government’s consultation on updating the law, but as in so many parts of the Bill, the devil will be in the detail. Although we have had some of the regulations, we have not had all of them, so I look forward to seeing those and ensuring that they do not cause any further concerns than those that have already been raised.
To skip through various aspects, new section 45A deals with the definition of contamination or infections and, I believe, for the first time introduces radiation as a form. Global security is seriously threatened, which has made it necessary to include radiation, but we must also be aware of our own concerns about radiation, regarding not only nuclear power stations, but much hospital equipment that is in use.
New section 45B deals with international travel and allows the appropriate Minister to update UK law without recourse to Parliament, or when there may be amendments to, or developments in, the law. For those who cannot sleep this evening, I recommend the World Health Organisation website, which describes the main features of the measures.
New section 45G has been referred to, and the LGA and HPA have raised concerns, but I shall reiterate some points. My greatest concern is about what the Minister said in oral evidence about the LGA not being clear about what was needed in the Litvinenko case. He will have to go to considerable lengths to ensure that local authorities and public health physicians do have very clear guidance. Many powers will be used in an emergency, in haste and rarely, making it imperative that council officers and public health physicians are fully conversant with the law and where they stand. It was worrying to hear what the LGA said.
New section 45L will govern the length of detention, which is currently 28 days, so it will be helpful to compare this legislation with the emergency procedures for sectioning a patient with mental illness. Emergency sectioning of a patient with mental illness in the community requires one doctor and an approved social worker or nearest relative. If the patient is already in hospital, the patient’s consultant—currently, a doctor, but in the future from any profession—or their nominated deputy can make the section. In both instances, the patient can be detained for no longer than 72 hours. For detention longer than that, two doctors, one of whom must be approved, and an approved social worker, or possibly the nearest relative, are required. If the patient has not already appealed against detention, the hospital must arrange one after six months. Renewal of detention is required at six-month intervals for 18 months, and after 18 months, sectioning is done annually.
Given that comparison, and the 72-hour limit on someone needing to be detained under the Mental Health Act 2007, 28 days appears somewhat extreme. Will the Minister elaborate on that provision and tell us why he feels that 28 days are needed? Several issues have been raised, and on Second Reading my hon. Friend the Member for Worthing, West (Peter Bottomley) raised the issue that Liberty also raised. He said:
“When a magistrate signs a detention order—which is only one of the powers available to him—it may be challenged, although on many occasions it will be accepted. If the order is challenged, could it not be put to the magistrates’ court for confirmation?”—[Official Report, 26 November 2007; Vol. 468, c. 74.]
The Picker Institute’s head of policy, Don Redding, said:
“Patients could be subject to quite draconian orders. There’s an evident danger that patients will not want to report concerns to their GPs if they think it may lead to these actions,”
which may be an unintended consequence of the powers. He continued:
“This should be tested quite clearly in Parliament so the government gives a clear explanation of why these powers have been developed”.
Will the Minister explain exactly what future scenario he envisages, with particular reference to those 28 days? I see the Minister nodding, I do not need to reiterate the fact that the powers are draconian, very serious and must not be taken lightly.
I welcome an updating of the law. I note the concerns raised by the Liberal Democrats in their amendment, about allowing local authorities rather than JPs to hold power. The seizure of somebody’s premises is very serious—it could involve taking away their livelihood and I think that having that power resting with JPs is a positive measure. I would be grateful for the Minister’s comments on whether, particularly in the case of an appeal, the matter could go to the bench rather than one JP.

Ben Bradshaw: In respect of the 28-day detention and the comparison with the Mental Health Act, my understanding is that the Mental Health Act is not restricted to 72 hours, but is 28 days as well. I do not know whether that helps reassure the hon. Lady. The 28-day duration is based on the potential length of incubation for certain diseases. On her concerns that the law might be updated without recourse to Parliament, let me reassure her that new section 45F(3) allows UK law to be amended, but only through affirmative resolution agreed by both Houses. In an emergency, the regulations can be in place for 28 days, but will fall as soon as they are rejected by Parliament or if they are not debated within that time.
The hon. Lady has made an excellent contribution to the debate. I do not intend to address all the concerns she raised, as she was generally very supportive but sought reassurances about the safeguards. On the appeals concern, yes, one will be able to appeal to the Crown court under section 67 of the Public Health (Control of Diseases) Act 1984. In light of the discussions that we have had on the amendments, I ask hon. Members to approve the clause.

Question put and agreed to.

Clause 119, as amended, ordered to stand part of the Bill.

Clause 120 ordered to stand part of the Bill.

Schedule 11

Public health protection: further amendments

Ben Bradshaw: I beg to move amendment No. 243, in schedule 11, page 160, line 4, at end insert—
‘ (1) Section 5 of the 1984 Act (financial provisions as to port health authorities) is amended as follows.
(2) In subsection (2), for the words from “shall” onwards substitute “shall be defrayed by the constituent districts in such proportions and in such manner as may be determined by or in accordance with the order.”
(3) In subsection (3), omit “or rating districts”.’.

Derek Conway: With this it will be convenient to discuss Government amendments Nos. 244, 245 and 246.

Ben Bradshaw: A principal aim of the new public health measure is to update the Public Health (Control of Diseases) Act 1984. Amendment No. 243 updates section 5 of that Act by removing the obsolete reference to rating districts. Section 5 makes financial provisions in relation to port health authorities, especially for PHAs that are joint boards consisting of two or more constituent authorities.
PHAs are created by an order of the Secretary of State and such an order may state how the expenses of a joint board are to be defrayed. If the order does not state how they are to be defrayed, section 5 sets out a mechanism that uses a common fund to which the constituent districts or rating districts contribute. However, as the relevant definition of rating district in the General Rate Act 1967 has been repealed, the provision is out of date. Amendment No. 243 simply removes the mechanism to which I referred and the others are consequential amendments.

Amendment agreed to.

Amendment made: No. 244, in schedule 11, page 166, line 43, at end insert—
‘( ) “rating district”;’.—[Mr. Bradshaw.]

Schedule 11, as amended, agreed to.
Further consideration adjourned.—[Steve McCabe.]

Adjourned accordingly at ten minutes past Seven o’clock till Thursday 24 January at Nine o’clock.